Filed 12/30/19 P. v. Ho CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CUONG VAN HO,

Defendant and Appellant.

A156020

(Solano County

Super. Ct. No. FCR338837)

Cuong Van Ho appeals following his convictions for evading a peace officer and other crimes, the details and background of which are not relevant to this appeal. The trial court, after finding true allegations that appellant served two prior prison terms (Pen. Code, § 667.5, subd. (b)), imposed two consecutive one-year sentences on these enhancements (as part of an aggregate sentence of four years imprisonment).

Appellant’s sole claim on appeal is that a newly-enacted sentencing law applies retroactively to his case and requires a reversal of the prior prison term allegations. “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. (§ 667.5, subd. (b).) . . . 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).” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)

The parties properly agree that neither of appellant’s prior prison terms were for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). The parties also properly agree that the amendments enacted by Senate Bill No. 136 apply retroactively to any case in which the judgment is not yet final on Senate Bill No. 136’s effective date. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682 [“Senate Bill No. 136’s (2019–2020 Reg. Sess.) amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date”].) Although the People argue appellant’s claim is not ripe because Senate Bill No. 136 is not operative until January 1, 2020, this appeal will not be final until after that date. (See Cal. Rules of Court, rules 8.366(b)(1) [Court of Appeal decision final 30 days after filing of decision].) While we could wait until after January 1, 2020, to file our opinion, there is no practical reason to do so.

Accordingly, we will reverse appellant’s two section 667.5, subdivision (b) prior prison term enhancements and “remand the matter for resentencing to allow the court to exercise its sentencing discretion in light of the changed circumstances.” (People v. Jennings, supra, 42 Cal.App.5th at p. 682.)

DISPOSITION

The two one-year enhancements imposed pursuant to section 667.5, subdivision (b) are reversed. In all other respects, the judgment is affirmed. The matter is remanded for resentencing not inconsistent with this opinion.

SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(A156020)