Filed 9/8/20 P. v. Gilkey CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079008
Plaintiff and Respondent,
(Super. Ct. No. F18903518)
v.
ANTHONY BRYAN GILKEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff,
Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Franson, J. and Meehan, J.
Defendant Anthony Bryan Gilkey contends on appeal that his five one-year prior
prison term enhancements, imposed based on his prior felony convictions for nonsexually
violent offenses, should be stricken pursuant to Penal Code section 667.5,
subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate
Bill 136). The People concede the enhancements should be stricken. The parties also
agree that we should correct an error in the abstract of judgment. We strike the prior
prison term enhancements, order the error corrected, and affirm in all other respects.
PROCEDURAL SUMMARY
On August 23, 2018,2 the Fresno County District Attorney charged defendant with
three counts of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (f)(1);
counts 1, 3 & 5), three counts of failing to obey a protective order (§ 166, subd. (c)(1);
counts 2, 4 & 7), and one count of assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4); count 6). As to all counts, the information alleged
defendant had suffered a prior felony “strike” conviction within the meaning of the
“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a prior
serious felony conviction (§ 667, subd. (a)), and had served five prior prison terms
(§ 667.5, subd. (b)). As to counts 1, 3, and 5, it was alleged that defendant had
previously been convicted of infliction of corporal injury on a spouse or cohabitant
(§ 273.5, subd. (f)(1)). As to count 5, it was further alleged that defendant personally
inflicted great bodily injury (§ 12022.7, subd. (e)).
On October 18, the trial court dismissed count 4 on the district attorney’s motion.
On October 19, the jury found defendant guilty on counts 1, 2, 3, 5, 6, and 7. The
jury also found true the great bodily injury allegation on count 5 and the prior conviction
of infliction of corporal injury on a spouse or cohabitant allegations on counts 1, 3, and 5.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 All further dates refer to the year 2018 unless otherwise stated.
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On the same date, defendant admitted the prior strike conviction allegation, the prior
serious felony conviction allegation, and all five prior prison term allegations.3
On February 8, 2019, defendant raised a Romero4 motion, requesting that the trial
court dismiss the prior strike conviction allegation for purposes of the Three Strikes law.
Defendant also requested that the court not impose the prior serious felony enhancement
(§ 667, subd. (a)).
On March 7, 2019, the trial court declined both requests. On the same date, the
court sentenced defendant to an aggregate 27-year-eight-month term of imprisonment as
follows: on count 5, the aggravated term of five years, doubled to 10 years due to the
prior strike conviction, plus a five-year great bodily injury enhancement, a five-year prior
serious felony conviction enhancement, and five one-year prior prison term
enhancements; on count 1, a consecutive term of 32 months based on the middle term of
four years, doubled due to the prior strike conviction, and reduced to one-third;5 on
count 3, a concurrent term of 10 years based on the aggravated term of five years,
doubled due to the prior strike conviction; on count 6, a concurrent term of eight years
based on the aggravated term of four years, doubled due to the prior strike conviction; on
both counts 2 and 7, a concurrent term of 332 days with credit for time served.
On March 21, 2019, defendant filed a notice of appeal.
3 The prior prison terms were served for convictions of unlawful sexual intercourse
with a minor (§ 261.5, subd. (c)), false imprisonment (§ 236), inflicting corporal injury
on a spouse or cohabitant (§ 273.5, subd. (a)), and possession of a controlled substance
(Health & Saf. Code, § 11350).
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5 The abstract of judgment erroneously reflects a term of eight years on count 1,
rather than 32 months. The parties agree the abstract is erroneous, as do we. When a
discrepancy exists between the court’s oral pronouncement of sentence and the abstract
of judgment, the oral pronouncement controls. (People v. Delgado (2008) 43 Cal.4th
1059, 1070.) We will therefore direct the trial court to correct the error.
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FACTUAL SUMMARY
Defendant had been in a dating relationship with the victim for six years. In May,
he was living at her apartment, although she had a protective order against him at that
time.
On May 20, defendant and the victim argued. Defendant hit her on the mouth
with his hand, causing swelling and bruising, and punched her on the side of her body.
When she told defendant she was going to call 911, he left the apartment. After he left,
she called 911 and an officer responded to her apartment.
On May 21 or 22, defendant and the victim argued again, and defendant hit her on
the ribs, causing bruising. She did not call 911.
On May 23, the victim returned home with her grandson. Defendant and the
victim argued again. While she was seated on an ottoman in her bedroom and was
holding her grandson, defendant grabbed her by the chin and forced her head to strike a
wall “[p]retty hard.” She left the room and bathed her grandson. When she returned to
her bedroom, still holding her grandson, defendant grabbed her by the throat, forced her
against a wall, and choked her until she “s[aw] stars.” As defendant reached out to grab
her throat, he hit her on the mouth. The impact caused a dental appliance in her mouth to
dislodge, knocked out one of her teeth, and cut her lip. Defendant released her and told
her she could not leave the bedroom. After about five or 10 minutes, defendant left the
room and the victim called 911. An officer responded to the victim’s apartment, but
defendant had left by the time the officer arrived.
On May 23, officers arrested defendant.
DISCUSSION
Defendant argues his five prior prison term enhancements must be stricken based
on the retroactive application of Senate Bill 136. The People agree, as do we.
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Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed five one-year section 667.5, subdivision (b) prior
prison term enhancements for terms served for convictions of unlawful sexual intercourse
with a minor, false imprisonment, inflicting corporal injury on a spouse or cohabitant,
and possession of a controlled substance, none of which is a sexually violent offense as
defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant is
entitled to the ameliorative benefit of Senate Bill 136’s amendment to section 667.5,
subdivision (b).
The parties further agree, as do we, that because the trial court imposed the
maximum possible sentence, remand for the court to consider alternative sentencing
options is unnecessary. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
Accordingly, we strike the five prior prison term enhancements and direct the trial
court to amend the abstract of judgment.
DISPOSITION
All five prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The trial
court is directed to prepare an amended abstract of judgment removing the prior prison
term enhancements and correcting the term imposed on count 1, which should reflect a
consecutive one-third middle term of two years eight months. The court shall forward a
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copy of the amended abstract of judgment to the appropriate entities. As so modified, the
judgment is affirmed.
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