Filed 5/19/21 P. v. Jacuinde 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075462
v. (Super.Ct.No. RIF1603431)
JULIO CESAR JACUINDE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed as modified.
Rex Adam Williams, 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, Michael Pulos and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Julio Cesar Jacuinde 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 attempted carjacking. (§§ 664, 215, subd. (a), count
2.)2 The jury also found true a great bodily injury enhancement (§§ 12022.7, subd. (a),
1192.7, subd. (c)(8)) and a personal weapon use enhancement (§ 12022, subd. (b)(1),
1192.7, subd. (c)(23)). A trial court found true that defendant 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)). The court sentenced
him to a total of 18 years in state prison, which consisted of the upper term of four years
six months on count 2, doubled pursuant to the strike, plus one year on the personal
weapon use enhancement (§ 12022, subd. (b)(1)), three years on the great bodily injury
enhancement (§ 12022.7, subd. (a)), and five years on the prior serious felony conviction
(§ 667, subd. (a)). 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 exercise its discretion to dismiss defendant’s prior serious felony
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
2 The jury apparently found defendant not guilty of count 1 and “hung regarding
count three.”
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conviction pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.). (People v. Jacuinde
(May 15, 2019, E069537) [nonpub.opn.].)
The trial court held a hearing on July 20, 2020, and declined to dismiss the prior
serious felony conviction.
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,
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872.) The People correctly concede that Senate Bill No. 136 applies since defendant’s
case was not yet final on January 1, 2020, and his prior prison term enhancement was for
possession of an illegal weapon (former § 12020, subd. (a)(1)), 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 prior prison enhancement here was stayed, striking it
will have no effect on defendant’s sentence. Furthermore, a remand for resentencing is
unnecessary as the trial court already imposed the maximum sentence available. (People
v. Lopez (2019) 42 Cal.App.5th 337, 342.)
In addition, although not raised by the parties, we note an apparent clerical error.
The court sentenced defendant to the upper term of four years six months on count 2.
(§§ 664, 215, subd. (a).) However, the abstract of judgment reflects that the court
sentenced him to the upper term of nine years. The court did double the sentence on
count 2 pursuant to the prior strike, which made the sentence nine years, and the abstract
indicates the court sentenced him pursuant to the prior strike. However, in the interest of
accuracy, the abstract should not reflect that nine years was the upper term. Generally, a
clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804,
808.) “[I]f the minutes or abstract of judgment fails to reflect the judgment pronounced
by the court, the error is clerical and the record can be corrected at any time to make it
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reflect the true facts.” (People v. Little (1993) 19 Cal.App.4th 449, 452; see People v.
Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order the superior court clerk to
amend the abstract of judgment to reflect the imposition of four years six months on
count 2, and to indicate that the court doubled the term pursuant to the prior strike to
reach nine years.
DISPOSITION
The judgment is modified to strike defendant’s sentence on the prior prison
enhancement. (§ 667.5, subd. (b).) The superior court clerk is directed to modify the
abstract of judgment to reflect this change and also to indicate that the court imposed the
upper term of four years six months on count 2, which it doubled pursuant to the prior
strike. The clerk is further directed to forward a certified copy of the modified abstract of
judgment to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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