Filed 11/18/20 P. v. Ensminger 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F079752
Plaintiff and Respondent,
(Super. Ct. No. CR-18-006010)
v.
BILLY JOE ENSMINGER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T.
Steffen, Judge.
Ross Thomas, 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, Daniel B. Bernstein and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Peña, J. and Meehan, J.
Defendant Billy Joe Ensminger contends on appeal that his one-year prior prison
term enhancement 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 enhancement should be stricken. We strike the prior
prison term enhancement, remand for resentencing, and affirm in all other respects.
PROCEDURAL SUMMARY
On December 6, 2018,2 the Stanislaus County District Attorney charged defendant
in an amended information with attempted carjacking (§§ 215, subd. (a), 664; count 1),
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and possession of
ammunition by a felon (§ 30305, subd. (a)(1); count 3). As to count 1, the amended
information alleged defendant personally used a firearm (§§ 12022.5, subd. (a),
12022.53, subd. (b)), 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 serious felony conviction (§ 667, subd. (a)), and had served a prior prison term
(§ 667.5, subd. (b)).
On December 20, the jury found defendant guilty on all counts and found true the
firearm allegation.
On January 10, 2019, in a bifurcated hearing, the trial court found true the prior
serious felony conviction allegations and prior prison term allegation. Defendant’s prior
prison term was served for two 2010 convictions of unlawful taking or driving of a motor
vehicle (Veh. Code, § 10851, subd. (a)).
On July 31, 2019, the trial court imposed a sentence of 16 years in prison as
follows: on count 1, five years (the middle term of two and a half years doubled due to
defendant’s prior strike conviction), plus 10 years for the firearm enhancement, plus one
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.
2.
year for the prior prison term enhancement; on count 2, four years (the middle term of
two years doubled due to defendant’s prior strike conviction), stayed pursuant to
section 654; and on count 3, two years eight months (one year four months doubled due
to defendant’s prior strike conviction) to be served concurrently with the term on count 1.
On the same date, defendant filed a notice of appeal.
DISCUSSION3
Defendant argues his prior prison term enhancement 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, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement for a term served for two convictions of unlawfully taking or driving a
motor vehicle, which is not 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). We therefore
strike defendant’s prior prison term enhancement.
Where an appellate court strikes a portion of a sentence, remand for “ ‘a full
resentencing as to all counts is [generally] appropriate, so the trial court can exercise its
3 Because defendant raises only sentencing issues, the facts underlying the offenses
are not relevant and are omitted from this opinion.
3.
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)
5 Cal.5th 857, 893.) However, remand is unnecessary where the trial court has imposed
the maximum allowable penalty. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
Here, the trial court did not impose the maximum penalty on count 1 and it is
therefore appropriate to remand this matter for resentencing to allow the trial court to
revisit its sentencing choices in light of the changed circumstances. (See People v.
Buycks, supra, 5 Cal.5th at p. 893.) Accordingly, we strike the prior prison term
enhancement and remand to the trial court for resentencing.
We note that, on remand, the court may not impose a sentence that exceeds the
term originally imposed—16 years. (People v. Mustafaa (1994) 22 Cal.App.4th 1305,
1310–1312; see People v. Serrato (1973) 9 Cal.3d 753, 764, overruled on other grounds
in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Torres (2008) 163
Cal.App.4th 1420, 1431–1433.)
DISPOSITION
Defendant’s prior prison term enhancement (§ 667.5, subd. (b)) is stricken. The
sentence is vacated, and the matter is remanded to the trial court for resentencing. On
remand, the trial court may not impose a sentence that exceeds 16 years. In all other
respects, the judgment is affirmed.
4.