Filed 2/16/21 P. v. James CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076831
Plaintiff and Respondent,
v. (Super. Ct. No. SCE386635)
AARON JAMES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Lantz Lewis, Judge. Sentence vacated and remanded with directions.
Carl Fabian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
Aaron James appeals challenging only the sentence imposed.
Specifically, James contends the court erred in imposing five-year terms for
each of the alleged serious felony priors (Pen. Code,1 § 667, subd. (a)(1)). The
three convictions resulted from a single proceeding, thus only one five-year
term could lawfully be imposed. Second, James argues we must reverse the
true finding on the one year prison prior in light of Senate Bill No. 136, which
modified the definition of a “prison prior.” The Attorney General correctly
agrees James could only receive one five-year enhancement for the serious
felony convictions and that we should strike the true finding on the prison
prior.
We will remand the case for resentencing with directions to strike two
of the five-year enhancements and to strike the true finding on the prison
prior. The trial court must conduct a new sentencing hearing on remand in
light of our decision.
PROCEDURAL BACKGROUND
A jury convicted James of one count of residential burglary (§§ 459 and
460, subd. (a); count 1); misdemeanor petty theft (§§ 484 and 488; count 2);
and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 3). James
admitted four strike priors (§ 667, subd. (b)-(i)).
The court struck the four strike priors in order to limit the sentence to
21 years. The 21-year term was comprised of the upper term of six years for
the burglary conviction and three five-year terms for the three serious felony
priors.
James filed a timely notice of appeal.
DISCUSSION
A. The three serious felony prior convictions
The three serious felony priors at issue here were based on convictions
for three serious felonies prosecuted in a single proceeding in 2009 (Case
1 All further statutory references are to the Penal Code.
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No. SCE285683). The trial court imposed a five-year consecutive term for
each of the enhancements. As the parties agree, such sentence was contrary
to the provisions of section 667, subdivision (a)(1) and is therefore
unauthorized.
Section 667, subdivision (a)(1) states in part: “Any person convicted of
a serious felony who previously has been convicted of a serious
felony . . . shall receive, in addition to the sentence imposed by the court for
the present offense, a five-year enhancement for each such prior conviction on
charges brought and tried separately.”
In order to be brought and tried separately, the underlying proceedings
must have been formally distinct, from filing to adjudication of guilt. (In re
Harris (1989) 49 Cal.3d 131, 136.) Here the three priors arise from the same
proceeding and are thus unauthorized. The remedy is to vacate the sentence
and to remand the case to the trial court for resentencing.2 (People v. Rojas
(1988) 206 Cal.App.3d 795, 802.)
B. The Prison Prior
The trial court imposed a one-year term for the prison prior alleged
under section 667.5, subdivision (b) and stayed the term. Again, the parties
recognize the action is unauthorized.
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.)
changed the definition of such prior conviction enhancements.
Enhancements under section 667.5 now are limited to prior prison terms
served for violent sexual offenses. The prison prior alleged in this case no
2 The Attorney General asks the court to direct that the prosecution may
file an amended information if it wishes to do so. The question of whether an
amendment of the information should be allowed requires the court to
speculate whether the prosecution might wish to take such action. The
matter is better left to the trial court to determine if such request is made.
We decline to address the issue in this opinion.
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longer qualifies. Under the direction of In re Estrada (1965) 63 Cal.2d 740,
we must apply the law retroactively to cases not final as of the effective date
of the new statute. (People v. Graves (2020) 46 Cal.App.5th 231, 236-237.)
Accordingly, we will direct the trial court to strike the true finding for
the alleged prison prior.
DISPOSITION
The sentence is vacated, and the matter remanded to the trial court for
resentencing as appropriate. The court is directed to strike two of the five
year prior conviction enhancements and strike the true finding on the prison
prior. We express no opinion regarding the ultimate sentence the court
should impose on remand.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
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