Filed 8/16/21 P. v. Brooks CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B307652
(Super. Ct. No. TA137685)
Plaintiff and Respondent, (Los Angeles County)
v.
LEGEND BROOKS,
Defendant and Appellant.
This is the third appeal from the sentence imposed
after Legend Brooks was convicted, by jury, of assault with a
firearm and possession of a firearm by a felon. (Pen. Code, §§
245, subd. (b), 29800, subd. (a)(1).)1 While the appeals were
pending, our Legislature amended section 667.5. (Stats. 2019, ch.
590. § 1.) As amended, the statute authorizes a one-year prior
prison term enhancement only where the prior term was served
for a sexually violent offense. (§ 667.5, subd. (b).) Brooks’
All further statutory references are to the Penal Code
1
unless otherwise stated.
sentence includes a one-year prior prison term enhancement
imposed under the former version of section 667.5. Because his
prior prison term was not for a sexually violent offense, Brooks
contends the matter must be remanded for resentencing.
Respondent concedes a remand is necessary. We agree.
FACTS AND PROCEDURAL HISTORY
Brooks was convicted in 2016 of assault with a
firearm and possession of a firearm by a felony. The trial court
imposed a sentence of 16 years, 8 months, including a 1-year
prior prison term enhancement under former section 667.5,
subdivision (b). We affirmed the conviction, but remanded for
resentencing, so the trial court could exercise its newly-
established discretion to impose or strike the firearm use
enhancement. (§§1385, 12022.5, subd. (a); People v. Brim, et al.
(Oct. 2, 2018, B275782) [non-pub. opn.].)
The trial court entered a minute order declining to
strike the firearm use enhancement before the remittitur issued
and outside the presence of the parties or their counsel. We
remanded for resentencing at a hearing at which appellant had
the right to be present with counsel. (People v. Brooks (Nov. 18,
2019, B294596) [non-pub. opn.].) At the resentencing hearing, in
July 2020, the trial court again declined to strike the firearm use
enhancement. It also left the prior prison term enhancement
unchanged.
DISCUSSION
Effective January 1, 2020, Senate Bill No. 136 (2019-
2020 Reg. Sess.) amended section 667.5, subdivision (b) to
authorize a one-year prior prison term enhancement only where
the prior prison term was served “for a sexually violent
2
offense . . . .” (Stats. 2019, ch. 590. §1.) Appellant’s prior
conviction, for which he served a prior prison term, was for
resisting an executive officer. (§69.) This offense no longer
qualifies under section 667.5 for the prior prison term
enhancement. The amended statute applies to appellant because
the judgment in this case is not yet final. (People v. Gastelum
(2020) 45 Cal.App.5th 757, 772 (Gastelum); People v. Lopez (2019)
42 Cal.App.5th 337, 341; People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 306-308.)
Appellant is no longer eligible for the one-year prior
prison term enhancement. Because the trial court did not impose
the maximum possible sentence in this case, the matter must be
remanded to the trial court for resentencing. (People v. Buycks
(2018) 5 Cal.5th 857, 893; Gastelum, supra, 45 Cal.App.5th at pp.
772-773.)
DISPOSITION
The judgment on resentencing is reversed. The
matter is remanded to the trial court with directions to strike the
section 667.5, subdivision (b) enhancement and to re-sentence
appellant.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
3
Allen Joseph Webster, Jr., Judge
Superior Court County of Los Angeles
______________________________
Heather L. Beugen, under appointment by the Court
of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Idan Ivri, Deputy
Attorney General, for Plaintiff and Respondent.