Filed 9/14/20 P. v. Rivera CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299361
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA089208)
v.
MICHAEL ALEXANDER
RIVERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jared D. Moses, Judge. Affirmed with
directions.
Michele A. Douglass, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Nancy Lii
Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Michael Alexander Rivera appeals from the judgment
entered at a resentencing hearing held after remand from this
court. (See People v. Rivera (Feb. 14, 2019, B285951) [nonpub.
opn.].) Rivera contends only that the trial court failed to consider
whether a previously imposed one-year prior prison term
enhancement should be struck, as we had directed. The trial
court did, in fact, strike the enhancement. Accordingly, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rivera was convicted by a jury of second degree robbery.1
Although the court found at a bifurcated bench trial that Rivera
had suffered three prior strike convictions, it dismissed all three
for sentencing purposes under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 and sentenced Rivera to 18 years in state
prison: the middle term of three years for second degree robbery,
plus three five-year enhancements for Rivera’s prior serious
felony convictions pursuant to Penal Code section 667,
subdivision (a).2 Rivera appealed the judgment, contending the
trial court erred in imposing three, rather than one, prior serious
1 Rivera took a laptop computer from a dance studio. The
owner of the computer followed Rivera outside and confronted
him. Rivera punched the computer’s owner in the face, knocked
him to the ground, kicked him and then fled. The police located
Rivera, recovered the computer and arrested him.
2 Statutory references are to this code unless otherwise
stated.
2
felony enhancements for offenses that had been charged and tried
together. The People conceded the error, and we vacated Rivera’s
sentence and remanded the matter to allow the trial court to
reconsider all lawful sentencing options. (People v. Rivera
(Sept. 11, 2017, B270567) [nonpub. opn.].)
At Rivera’s resentencing hearing the trial court revisited its
Romero ruling, dismissed only two of Rivera’s three prior strike
convictions and sentenced Rivera to 15 years in state prison: the
upper term of five years for second degree robbery, doubled
pursuant to the three strikes law, plus a consecutive five-year
enhancement under section 667, subdivision (a)(1).
In a second appeal Rivera contended the trial court had
abused its discretion by dismissing only two of his three prior
strike convictions, arguing his sentence should be reduced to
10 years. We disagreed, but remanded the matter once again to
allow the trial court to consider whether to dismiss or strike a
one-year prior prison term enhancement under section 667.5,
subdivision (b), that the court had stayed in Rivera’s original
sentence3 or the five-year prior serious felony enhancement under
3 As we explained the law in effect prior to the January 1,
2020 amendment of section 667.5, subdivision (b), which limited
that enhancement to prior prison terms for sexually violent
offenses (see Stats. 2019, ch. 590, § 1), “when it originally
imposed (albeit incorrectly) three prior serious felony
enhancements, the trial court properly stayed the one-year
enhancement for the prior prison term Rivera served for those
convictions. However, if the prison term is attributable to a
felony for which no prior serious felony enhancement is imposed,
the section 667.5, subdivision (b), enhancement for that prison
term must be imposed or stricken. (People v. Langston (2004)
33 Cal.4th 1237, 1241; citations omitted].) Accordingly, once we
vacated the three section 667, subdivision (a), enhancements and
3
then-recent amendments to section 667, subdivision (a)(1), and
section 1385, effective January 1, 2019 (see Stats. 2018, ch. 1013,
§§ 1 & 2), which give the court discretion not to impose this
formerly mandatory enhancement. (People v. Rivera, supra,
B285951.)
On remand the trial court on March 11, 2019 issued an
order declining to strike the five-year prior serious felony
enhancement under section 667, subdivision (a), but striking the
one-year prior prison term enhancement “in the interests of
justice as that appears to be consistent with Judge Umhofer’s
intent.”4 Recognizing somewhat belatedly that in People v. Rocha
(2019) 32 Cal.App.5th 352 our colleagues in Division Four of this
court had held the defendant has a right to be present with
counsel at a hearing at which the court decides whether it will
exercise its discretion to strike a previously mandatory
sentencing enhancement, on May 23, 2019 the court held a
sentencing hearing to reconsider whether to strike the
section 667, subdivision (a), prior serious felony enhancement.5
The court again declined to strike the enhancement. The
section 667.5, subdivision (b), prior prison term enhancement was
not addressed at the May 23, 2019 hearing.
the trial court at resentencing imposed only one of those
enhancements, the lesser one-year prior prison term
enhancement was no longer prohibited and could not be stayed.”
(People v. Rivera, supra, B285951.)
4 Judge Donald Umhofer, who presided at Rivera’s trial and
previously sentenced him, had retired by the time of the remand.
5 Rivera elected to appear at the hearing without counsel.
4
DISCUSSION
In October 2019 the Legislature enacted Senate Bill
No. 136 (Stats. 2019, ch. 590, § 1) amending section 667.5,
subdivision (b), effective January 1, 2020. The new law limited
the applicability of that provision’s one-year sentence
enhancement for prior prison terms to defendants who had
previously served a prison term for sexually violent offenses as
defined in Welfare and Institutions Code section 6600,
subdivision (b). As the Attorney General acknowledges, this
ameliorative amendment applies to nonfinal judgments on
appeal. (People v. Petri (2020) 45 Cal.App.5th 82, 94
[“amendment to section 667.5, subdivision (b),” effective
January 1, 2020, “applies retroactively to all defendants whose
judgments are not yet final as of that date”]; see People v.
Matthews (2020) 47 Cal.App.5th 857, 865; People v. Winn (2020)
44 Cal.App.5th 859, 872-873; see generally In re Estrada (1965)
63 Cal.2d 740, 748 [for a nonfinal conviction, “where the
amendatory statute mitigates punishment and there is no saving
clause, the rule is that the amendment will operate retroactively
so that the lighter punishment is imposed”].)
Rivera and the Attorney General agree the one-year prior
prison term enhancement based on Rivera’s prior conviction for a
robbery, previously imposed and stayed by the trial court, must
be struck from his sentence. Focusing on the May 23, 2019
sentencing hearing and apparently overlooking the March 11,
2019 minute order, Rivera in his brief on appeal argued the trial
court failed to address that enhancement, notwithstanding our
express direction that it do so. The Attorney General in his
respondent’s brief explains the enhancement had been struck on
March 11, 2019, so no further action by the court was necessary
5
on May 23, 2019.6 We agree and, as suggested by the Attorney
General, direct the superior court to prepare a new abstract of
judgment to reflect the correct sentence, including the stricken
section 667.5, subdivision (b), enhancement.
DISPOSITION
The judgment is affirmed. The superior court is directed to
prepare a corrected abstract of judgment that reflects the one-
year prior prison term enhancement under section 667.5,
subdivision (b), has been struck, and forward it to the
Department of Corrections and Rehabilitation.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
6 Rivera did not file a reply brief and waived oral argument.
6