Filed 3/4/21 P. v. Luft CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074830
v. (Super.Ct.No. SWF1403253)
BRIAN LEE LUFT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.
Affirmed as modified.
Stephen M. Lathrop, 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, Daniel Rogers, Kristen Chenelia
and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Brian Lee Luft contends his prior prison term
enhancement (Pen. Code,1 § 667.5, subd. (b)) should be stricken pursuant to Senate Bill
No. 136 (2019-2020 Reg. Sess.). The People concede, and we agree.
PROCEDURAL BACKGROUND
A jury convicted defendant of two counts of inflicting corporal injury on his
spouse (§ 273.5, subd. (a)), four counts of criminal threats (§ 422), and one count of
dissuading a witness (§ 136.1, subd. (b)(1)). The jury also found a knife-use
enhancement true. (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1).) Defendant admitted
the allegations that he had a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12,
subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)), and a prison prior
(§ 667.5, subd. (b)). On September 30, 2016, the court sentenced him to a total of 21
years in state prison, including time for the prior strike and prior serious felony. (People
v. Luft (Apr. 26, 2019, E067082) [nonpub. opn.].) The court imposed but stayed the one-
year term on the prison prior.
Defendant appealed, and this court affirmed the judgment but remanded the case
for the trial court to correct the abstract of judgment and to exercise its discretion to
dismiss defendant’s prior serious felony conviction pursuant to Senate Bill No. 1393
(2017-2018 Reg. Sess.). (People v. Luft, supra, E067082, pp. 20-21.)
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
2
The trial court held a hearing on January 27, 2020, and declined to dismiss the
prior serious felony conviction based on defendant’s criminal history and pattern of
engaging in violent criminal acts.
Defendant filed a timely notice of appeal.
DISCUSSION
The Prior Prison Enhancement Must Be Stricken
Defendant contends the one-year term imposed under section 667.5, subdivision
(b), must be stricken pursuant to Senate Bill No. 136 since his case was not yet final
when Senate Bill No. 136 went into effect on January 1, 2020. The People concede, and
we agree.
A. Senate Bill No. 136 Applies to Defendant’s Case
“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to
impose a one-year sentence enhancement for each true finding on an allegation the
defendant had served a separate prior prison term and had not remained free of custody
for at least five years.” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) “Effective
as of January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amends section 667.5,
subdivision (b) to limit its prior prison term enhancement to only prior prison terms for
sexually violent offenses, as defined in Welfare and Institutions Code section 6600,
subdivision (b).” (Ibid.) The statute is retroactive and applies to cases not yet final as of
its effective date. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Winn (2020) 44
Cal.App.5th 859, 872.) The People correctly concede that Senate Bill No. 136 applies
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since defendant’s case was not yet final on January 1, 2020, and his prior prison term
enhancement was for a spousal abuse conviction (§ 273.5, subd. (a)), which is not a
sexually violent offense.
Accordingly, we will modify the judgment by striking the prior prison term
enhancement and affirm the judgment as modified. We note that generally when part of a
sentence is stricken, the case is remanded “ ‘so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) However, because the prison prior enhancement here was stayed, striking it
will have no effect on defendant’s sentence. Thus, we see no reason to remand the case
for resentencing. We also note that the matter was previously remanded for the trial court
to correct the abstract of judgment to reflect that defendant was sentenced to the low term
rather than the middle term on count 7. (People v. Luft, supra, E067082.) Upon
correction, the clerk apparently neglected to list the prior prison term enhancement on the
amended abstract of judgment. Thus, there is no need to amend the abstract of judgment
to reflect the modified judgment.
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DISPOSITION
The judgment is modified to strike defendant’s one-year prison prior
enhancement. (§ 667.5, subd. (b).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
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