Filed 9/17/20 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F078848
Plaintiff and Respondent,
(Super. Ct. No. F17906422)
v.
ARMANDO MARTINEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Karriem Baker, 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., Smith, J. and Snauffer, J.
Defendant Armando Martinez contends on appeal that the three stayed one-year
prior prison term enhancements, imposed based on his prior felony convictions for
nonsexually violent offenses, should be stricken pursuant to the amendment to Penal
Code section 667.5, subdivision (b),1 effected by Senate Bill No. 136 (2019-2020 Reg.
Sess.) (Senate Bill 136). The People concede the enhancements should be stricken. We
accept the People’s concession and strike the prior prison term enhancements. In all
other respects, we affirm.
PROCEDURAL SUMMARY
On December 26, 2017, the Fresno County District Attorney charged defendant
with assault with a deadly weapon (§ 245, subd. (a)(1); count 1). The information alleged
defendant personally inflicted great bodily injury in committing count 1 (§ 12022.7, subd.
(a)). The information further 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 three prior prison terms (§ 667.5, subd. (b)).
On December 12, 2018, the jury found defendant guilty and the great bodily injury
enhancement true. On the same date, defendant admitted that he had served three prior
prison terms and had suffered a prior strike conviction.
On January 1, 2019, the trial court sentenced defendant to an aggregate term of
16 years as follows: the court imposed the aggravated term of four years, doubled to
eight years based on the prior strike conviction, plus a consecutive five-year enhancement
based on the prior serious felony conviction, plus a consecutive three-year enhancement
based on the infliction of great bodily injury. The court also imposed and then stayed
three one-year prior prison term enhancements.2
1 All further statutory references are to the Penal Code unless otherwise stated.
2 The court was not authorized to stay two of the three prior prison term
enhancements alleged and found true pursuant to section 667.5, subdivision (b).
2.
On February 15, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY
Ronnie Orona was at a gas station and convenience store near downtown Fresno
on the morning of October 27, 2017. He needed 25 cents for bus fare and intended to ask
a patron for a quarter. As Orona waited, defendant approached on his bicycle. The two
men talked, and then defendant asked Orona to come with him to the side of the
convenience store. They walked to the side of the store and smoked a cigarette together.
Defendant then took his shirt off and attempted to punch Orona two or three times but did
not make contact. Orona told defendant to stop but defendant did not stop. Orona hit
defendant twice, defendant then “hugged up against” Orona, and Orona pushed defendant
away. Defendant then removed a four- to five-inch pocketknife from his pocket and
stabbed Orona at least three times—once in the stomach, once under the arm, and once in
the lung. After stabbing Orona, defendant left the area on his bicycle.
On the same day, a police officer discovered defendant hiding in a tree roughly
one-quarter mile from the gas station and convenience store and arrested him.
Generally, “[o]nce the prior prison term is found true within the meaning of
section 667.5[, subdivision ](b), the trial court may not stay the one-year enhancement,
which is mandatory unless stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241;
accord People v. Lua (2017) 10 Cal.App.5th 1004, 1020 [concluding the trial court
imposed an unauthorized sentence by imposing and discretionarily staying the one-year
sentence enhancement under section 667.5, subdivision (b)].) However, where a prior
conviction is the basis for an enhancement pursuant to section 667, subdivision (a) and a
prior prison term enhancement pursuant to section 667.5, subdivision (b), California
Rules of Court, rule 4.447, permits a trial court to impose and then stay execution of a
section 667.5, subdivision (b) enhancement. (People v. Brewer (2014) 225 Cal.App.4th
98, 104–105.) Here, one of the prior prison terms was served for the serious felony for
which the court imposed an enhancement pursuant to section 667, subdivision (a). The
prior prison term enhancement for that prior conviction was properly stayed. The other
two prior prison term enhancements should have been imposed or stricken. Regardless,
because we strike all three prior prison term enhancements in light of Senate Bill 136, we
need not correct the error.
3.
DISCUSSION
Defendant argues his prior prison term enhancements must be stricken based on
the retroactive application of Senate Bill 136. The People agree, as do we.
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, 342, citing In re Estrada (1965) 63
Cal.2d 740, 742.)
Here, the trial court imposed three one-year section 667.5, subdivision (b) prior
prison term enhancements based on terms of imprisonment for convictions of receiving a
stolen vehicle (§ 496d), driving a stolen vehicle (Veh. Code § 10851), and robbery
(§ 211), 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 People contend that the trial court imposed the maximum possible sentence
and therefore remand for the court to consider alternative sentencing options is
unnecessary. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.) Defendant does not
respond. While it is true that defendant could not now be sentenced to a higher term of
imprisonment, the trial court did not impose the maximum term available to it.
Specifically, we observe that the trial court attempted to “exercise [its] discretion [to] stay
[the] three one-year” prior prison term enhancements. As noted, the trial court did not
actually have the discretion to stay two of the prior prison term enhancements found
true—only to strike or impose those enhancements. (People v. Lua, supra, 10
Cal.App.5th at p. 1020; People v. Brewer, supra, 225 Cal.App.4th at pp. 104–105.)
4.
Regardless, because we strike the prior prison term enhancements, we effectively correct
the sentencing error and leave untouched the term of imprisonment the trial court
intended defendant to serve. Remand in this situation would be an idle act and is
therefore not required. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Accordingly, we strike the three prior prison term enhancements and direct the trial court
to issue an amended abstract of judgment.
DISPOSITION
The three prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The
remaining counts and enhancements are unmodified. The trial court is directed to prepare
an amended abstract of judgment removing the prior prison term enhancements. The trial
court shall forward a copy of the amended abstract of judgment to the appropriate
entities. As so modified, the judgment is affirmed.
5.