Filed 1/6/20 P. v. Adams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

JEROME MARCUS ADAMS,

Defendant and Appellant.

E072128

(Super.Ct.No. FVI18002194)

OPINION

APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill, Judge. Affirmed.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On October 9, 2018, a first amended information charged defendant and appellant Jerome Marcus Adams with a single count of committing a lewd act on a child 15 years of age who was at least 10 years younger than defendant, under Penal Code section 288, subdivision (c)(1). The information also alleged that defendant had served four prior terms in prison under section 667.5, subdivision (b).

On October 18, 2018, a jury found defendant guilty as charged, and on October 24 the trial court found two of the four priors true.

On January 10, 2019, defendant was sentenced to a total term of five years in state prison, as follows: three years for the substantive offense, and a consecutive term of one year for each of the two prior prison terms. The court also awarded credits and imposed fines and fees as required by law.

On February 4, 2019, defendant filed a timely notice of appeal. Thereafter, defense counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 426 and Anders v. California (1967) 386 U.S. 738. After we issued our opinion on September 30, 2019, defense counsel filed a petition for rehearing on October 15, 2019. The People filed a response to the petition on October 22, 2019. On October 25, 2019, we granted the petition and vacated our opinion. We hereby issue this new opinion.

B. STATEMENT OF FACTS

The victim was born in November 2002. On August 5, 2018, the victim and her friend were in Barstow and needed to get back home to Adelanto. Defendant and a man called “Blue” agreed to give them a ride. Defendant’s agreement with the victim was that she would have sex with him if he gave them a ride. On the way to Adelanto, defendant stopped at a park to have oral sex with the victim.

Defendant (born September 1983) and the victim were in the car. Blue and the victim’s friend were sitting on a nearby bench. While in the car, the victim orally copulated defendant, and defendant put his hand on the victim’s vagina.

Sergeant Jarell Gilmore of the Barstow Police Department was on duty on August 5, 2018. The sergeant drove in the park and saw defendant and the victim inside the car. When Sergeant Gilmore approached the car, he saw the victim orally copulating defendant.

DISCUSSION

In the petition for rehearing, defendant contends that he is entitled to have his prison prior sentence enhancements stricken pursuant to the amendment to section 667.5, subdivision (b), by Senate Bill 136 (SB 136) effective January 1, 2020. Currently, defendant is serving a term in state prison of three years for the section 288, subdivision (c)(1), violation; and consecutive two one-year terms imposed under section 667.5, subdivision (b), for prior prison terms. The People concede that the sentence on the section 667.5, subdivision (b) priors must be stricken after January 1, 2020.

On October 8, 2019, SB 136 was signed into law and will become effective on January 1, 2020. SB 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). The statute is retroactive and applies to cases not yet final as of its effective date. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) Defendant’s conviction will neither be final on January 1, 2020, nor will the remittitur have issued. We therefore order that defendant’s two one-year sentences for his prison priors be stricken effective January 1, 2010.

We will not remand this case to the trial court for resentencing because the trial court already imposed the maximum possible prison term on the only count. Therefore, we direct the trial court to amend the abstract of judgment to reflect a maximum prison term of three and not five years.

DISPOSITION

The judgment is affirmed. The two one-year sentences for prison priors are stricken from defendant’s sentence effective January 1, 2020, so his total prison sentence is three years rather than five years. The trial court is directed to correct the abstract of

 

judgment to reflect this change and to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.