Filed 1/24/20 P. v. Christy CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALYN CHARLES CHRISTY,

Defendant and Appellant.

C085962

(Super. Ct. No. 17FE008576)

Defendant Donalyn Charles Christy was convicted of possession of cocaine for sale (Health & Saf. Code, § 11351) and possession of methamphetamine for sale (Health & Saf. Code, § 11378) and sentenced to an aggregate term of eight years four months, including a consecutive one-year term for a prior prison term under Penal Code section 667.5, subdivision (b).

Defendant now contends (1) the trial court erred by denying his motion to suppress evidence of the search that revealed the contraband because there was no reasonable suspicion that criminal activity was afoot sufficient to detain him, the detention was unreasonably prolonged, and the evidence does not support a finding that the initial encounter with the officers was consensual; (2) the trial court erred by denying his motion for mistrial after the prosecutor used a peremptory challenge to excuse a black juror, and the prosecutor impermissibly used a peremptory challenge to excuse another prospective juror based on the prospective juror’s disability; (3) the trial court abused its discretion by admitting evidence of defendant’s prior conviction for possession of methamphetamine for sale to show intent and knowledge regarding the current charges; (4) the trial court abused its discretion in denying defendant’s motion to dismiss his “30-year-old juvenile strike prior” for armed robbery in 1987; and (5) we must strike the one-year enhancement imposed by the trial court under section 667.5, subdivision (b) because Senate Bill No. 136 eliminated statutory authority for the enhancement.

We conclude (1) the trial court properly denied the motion to suppress evidence because the initial encounter was consensual and the subsequent detention was supported by reasonable suspicion of criminal activity; (2) the trial court properly denied the motion for mistrial, and defendant forfeited his argument that the prosecutor impermissibly used a peremptory challenge to excuse a prospective juror based on the prospective juror’s disability by failing to raise the issue in the trial court; (3) the trial court did not abuse its discretion in admitting evidence of defendant’s prior conviction for possession of methamphetamine for sale to show intent and knowledge regarding the current charges; (4) defendant did not receive his prior strike conviction as a juvenile, and the trial court did not abuse its discretion in denying the motion to dismiss it; and (5) the law no longer authorizes the one-year enhancement imposed by the trial court under section 667.5, subdivision (b).

Accordingly, we will strike the one-year prior prison term enhancement, vacate the sentence, and remand for resentencing. In all other respects, we will affirm the judgment.

BACKGROUND

Sacramento Police officers encountered defendant and two other people in Alkali Flats. A search of defendant revealed that in his front right pants pocket, he possessed a bag containing seven individually wrapped pieces of rock cocaine totaling .65 grams, and another bag with two smaller bags of methamphetamine totaling 3.97 grams; in his shirt pocket he possessed a bindle containing .14 grams of methamphetamine; in a backpack he possessed a bag of marijuana; and in his pants pocket and sock he possessed pills containing methamphetamine.

Additional evidence is set forth in the discussion as relevant to the contentions on appeal.

DISCUSSION

I

In his appellant’s opening brief, defendant contends the trial court erred in denying his motion to suppress evidence because there was no reasonable suspicion of criminal activity sufficient to detain him and the detention was unreasonably prolonged. In his supplemental brief, defendant claims the evidence does not support a finding that his initial encounter with law enforcement was consensual.

“ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 924.)

A

The evidence relevant to the motion to suppress evidence resulting from the search and arrest of defendant was introduced during the hearing on the motion to suppress and consisted of testimony by Sacramento Police Officer Jason Duink. (See People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644, fn. 5 [review of suppression motion limited to evidence in suppression hearing].) Officer Duink had 14 years of patrol experience and special training in narcotics transactions. On May 8, 2017, Officer Duink was patrolling in the Alkali Flats area of Sacramento on bicycle in the afternoon. He was in uniform with a handgun, baton, tazer, and pepper spray. Officer Hank McClusky and Sergeant Lane Polete were also riding bicycles with Officer Duink. Officer Duink testified that Alkali Flats is a “high narcotic area,” based on his experience patrolling there and the experiences of other officers with whom he had talked.

As the officers rounded a corner, Officer Duink saw three people huddled together about 35 feet away: a white male, a black male, and a white or Hispanic female. The three looked in the officers’ direction. The female stuffed something down the front of her shirt, and the three began walking away.

Officer Duink rode up beside the two males, one of whom was defendant. He did not tell defendant to stop or to freeze, and he did not draw his weapon. He did not activate the blue and red lights on his bicycle. In a normal conversational tone, Officer Duink asked defendant what was going on. Defendant responded that nothing was going on. Officer Duink asked defendant what his name was and whether he had any identification. Defendant provided a false name. Officer McCluskey ran the name defendant gave and no match was returned. Officer Duink and Officer McCluskey advised defendant to “come clean,” and defendant gave his true name and said he believed he had a warrant for a violation of probation. Defendant’s true name was run through the system, and the officers learned he was on Post Release Community Supervision (PRCS) for narcotics sales.

After the officers learned defendant was on PRCS, Officer Duink asked defendant if he had anything illegal on him, and defendant responded that he had “rock,” meaning rock cocaine. Officer Duink searched defendant and located a bag in defendant’s pants pocket that had seven pieces of rock cocaine. He also found other narcotics. Officer Duink placed defendant under arrest. Until the arrest, Officer Duink and the other officers never told defendant he was not free to leave.

Defendant’s counsel asserted at the hearing on the motion to suppress that Officer Duink detained him without reasonable suspicion and unreasonably prolonged the detention. Counsel stated: “[Defendant] is a Black man in a community where three white officers contact him. If he runs, then he’s charged with a 148 [resisting a peace officer]. He’s not free to go.”

The trial court denied the motion to suppress. It did not expressly rule whether or not the initial encounter was a detention, but it found that a reasonable person would have felt free to leave at the outset and that there was reasonable suspicion of criminal activity. The trial court rejected counsel’s argument that the analysis should be different because defendant is black and the officers are white. Finally, the trial court found that, when defendant gave a false name, suspicions were heightened and prolongation of the encounter was justified. The justified prolongation of the detention yielded information that defendant was on PRCS and led to defendant’s admission that he possessed rock cocaine.

B

Consensual encounters with law enforcement do not trigger Fourth Amendment scrutiny. If a reasonable person would feel free to disregard the officer and leave, there is no seizure, and reasonable suspicion of criminal activity is not required for the officer to engage the person. A seizure occurs when an officer, by means of physical force or show of authority, restrains the individual’s liberty. And only a seizure triggers Fourth Amendment scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389] (Bostick).)

We consider the totality of the circumstances when determining whether a seizure has occurred. (Bostick, supra, 501 U.S. at p. 439.) Circumstances that might indicate a seizure has occurred include (1) the presence of several police officers, (2) an officer’s display of a weapon, (3) an officer’s touching of the person, or (4) an officer’s use of commanding language or tone of voice. (United States v. Mendenhall (1980) 446 U.S. 544, 554 [64 L.Ed.2d 497].) An officer’s state of mind that is not communicated and the person’s subjective belief about whether the person is free to leave are not relevant in determining whether an encounter is consensual. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

When Officer Duink initially encountered defendant, the officer was with two other bicycle officers. But the three officers happened upon defendant and the other two people randomly; they did not appear as part of an investigation. Even though there were three officers, Officer Duink did not display a weapon, did not touch defendant, and did not use commanding language. The initial encounter was consensual.

There is nothing in these facts to indicate a reasonable person in defendant’s circumstances would not feel free to leave even after Officer Duink asked defendant for his name and what was going on. Defendant gave Officer Duink a false name, but that circumstance did not turn the encounter into a detention. “Asking questions, including incriminating questions, does not turn an encounter into a detention. [Citation.]” (People v. Chamagua (2019) 33 Cal.App.5th 925, 929.) The officers determined defendant’s true name and his PRCS status and were told by defendant that he had rock cocaine on him. Even if the encounter ultimately became a detention and was subsequently prolonged, the detention was not unlawful because defendant gave a false name, he was on PRCS status, and he admitted violating the law. (Id. at pp. 928-929.)

Defendant claims there was insufficient evidence to support a finding that Alkali Flats was a high-crime area, that the appearance of the officers spooked the three individuals, and that Officer Duink believed he had observed a drug transaction. We need not consider these arguments because, as we have explained, the initial encounter was consensual and the subsequent detention was supported by the circumstances.

Defendant further claims we must find that the initial encounter between Officer Duink and defendant was a detention because that is what the trial court found. To the contrary, the trial court found that a reasonable person in defendant’s circumstances would have felt free to leave. The trial court’s additional finding that there was reasonable suspicion of criminal activity does not require us to characterize the initial encounter as a detention, and defendant does not cite authority for such a proposition. (Cal. Rules of Court, rule 8.204(a)(1)(B); McComber v. Wells (1999) 72 Cal.App.4th 512, 522 (McComber) [failure to cite authority forfeits point].)

The trial court properly denied defendant’s motion to suppress.

II

Defendant next contends the trial court erred by denying his motion for mistrial after the prosecutor used a peremptory challenge to excuse a black juror. (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) He also contends the prosecutor impermissibly used a peremptory challenge to excuse another prospective juror based on the prospective juror’s disability.

A

“The ‘Constitution forbids striking even a single prospective juror for a discriminatory purpose.’ ” (Foster v. Chatman (2016) ___ U.S. ___, ___ [195 L.Ed.2d 1, 12].) But a showing of discriminatory purpose remains essential in a case challenging the strike of a juror, and the defendant carries the burden of persuasion to prove purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 170-171 [162 L.Ed.2d 129].

A showing of discriminatory purpose is made by way of a three-step inquiry: “ ‘First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution’s offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race [or other protected category] discrimination.’ ” (People v. O’Malley (2016) 62 Cal.4th 944, 974 (O’Malley).)

B

During jury selection, prospective juror C.V. requested to be released from jury duty for a hardship because she suffers from post-traumatic stress disorder (PTSD) and has anxiety attacks. When the trial court questioned her about PTSD, she said she was having an anxiety attack at that time. She said she was a victim of a violent crime and would suffer from anxiety in cases alleging rape or something similar. When the trial court explained that this case only involved possession of narcotics for sale, C.V. said she thought she could serve. The trial court therefore denied the hardship request.

When the trial court questioned C.V. during voir dire, C.V. said her aunt’s friend was a corrections officer. The trial court also asked about C.V.’s responses on the juror questionnaire. C.V. wrote on the questionnaire that her father was a victim of robbery 45 years ago, but when the trial court inquired further, C.V. said her father actually committed the robbery and was deported. When asked whether her father felt he was treated fairly, she said, “I guess, I’m not sure.” C.V. said she was attending junior college and wanted to be a heart surgeon.

When defense counsel asked the prospective jurors whether any of them thought they might not be good jurors in this case, C.V. responded: “I feel kind of out of place being the only colored person. It won’t change my opinion, but I just feel kind of like out of place.” When defense counsel, referring to the trial court’s prior conversation with C.V., asked if C.V. was being “trigger[ed],” C.V. said, “A little bit, but not to the point where I can’t be a good juror.” She then reiterated, “I just feel out of place being the only colored person.”

When the prosecutor asked during voir dire whether any of the prospective jurors would find it difficult to vote guilty, another prospective juror replied, “It’s difficult, but if you prove beyond a shadow of a doubt, I have to make that decision.” The prosecutor explained to the prospective jurors that the standard is beyond a reasonable doubt, not beyond a shadow of doubt. When the other prospective juror said she could apply the reasonable doubt standard, C.V. raised her hand and said, “I agree with her on that one.” C.V. added, “I can’t remember exactly what she [the other prospective juror] said, but I agree fully with what she said.” The prosecutor asked, “That you would find it difficult?” C.V. answered, “Yes. But I could do it.”

The prosecutor used his fourth peremptory challenge to excuse C.V. Defense counsel immediately made a motion under Wheeler/Batson, noting that C.V. was the only black prospective juror and that C.V. had even referenced that fact during voir dire. The trial court did not rule on whether defense counsel had made a prima facie showing of purposeful discrimination, but it did invite the prosecutor to respond. The prosecutor explained that he excused C.V. because (1) C.V. filled out the juror questionnaire to suggest her father had been the victim of a robbery rather than convicted of the robbery, (2) it seemed to the prosecutor that C.V. had some dislike of the justice system based on the conviction of her father, and she was not sure her father had been treated fairly, (3) her arms were crossed as the prosecutor questioned the group of prospective jurors, (4) C.V. indicated she felt out of place, but the prosecutor was looking for jurors who would get along with other jurors, and (5) C.V. agreed with the other prospective juror who misstated the standard of proof. The prosecutor also explained his reasons for excusing other prospective jurors who were not black.

After argument from counsel, the trial court ruled: “The People are not permitted to use trivial reasons such as body language. However, [C.V.’s] answers, the way she completed her form, the other answers that the People have given regarding the juror’s discomfort being on the jury the Court finds are sufficient and the [defense] has not met their burden, and therefore, I will deny the motion.”

C

Because the trial court did not expressly find the absence of a prima facie showing but continued the inquiry and essentially credited the prosecution’s explanation, we will treat this as a third-stage inquiry — that is, whether the record and law support the trial court’s determination that “ ‘the prosecution’s offered justification is credible” and “the defendant has [not] shown purposeful race [or other protected category] discrimination.’ ” (O’Malley, supra, 62 Cal.4th at p. 974; see also People v. Jurado (2006) 38 Cal.4th 72, 104 [asking prosecutor to explain implies prima facie case established].)

“ ‘ “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” [Citation.]’ [Citation.]” (People v. Mai (2013) 57 Cal.4th 986, 1048-1049.)

Here, after presiding over the jury selection proceedings and hearing the prosecutor’s reasons for excusing C.V., the trial court gave its reasons for denying the Wheeler/Batson motion. It appeared to reject the prosecutor’s body-language reason as trivial, but it credited the prosecutor’s other reasons for excusing C.V., including the way C.V. completed the juror questionnaire. Defendant claims the prosecutor’s mention of the juror questionnaire was pretextual because errors in filling out the questionnaire are common. But the way C.V. completed the questionnaire did not reflect a simple mistake, it tended to communicate that her father was a victim rather than the perpetrator of a robbery. And her further responses during voir dire conveyed discomfort with the justice system.

Defendant further argues it was pretextual for the prosecutor to suggest that C.V. might not get along with the rest of the jury because she felt out of place as the only black prospective juror. However, it was C.V. who asserted her discomfort, and the prosecutor was not constitutionally prohibited from inferring from her expressed discomfort that she might not work well with other jurors.

The prosecutor also relied on C.V.’s apparent agreement with the other prospective juror who misstated the standard of proof as proof beyond a shadow of a doubt. And C.V. indicated she had PTSD and was experiencing an anxiety attack in court. The record supports the trial court’s determination that the prosecution’s reasons for using a peremptory challenge to excuse C.V. were credible and did not show purposeful discrimination against a black prospective juror.

Although defendant argues we should determine whether “persons of color” is a protected category and we should also consider the other nonwhite prospective jurors who were challenged by the prosecutor, defendant did not bring the broader question of persons of color to the attention of the trial court, and “persons of color” is not a protected category under Wheeler/Batson jurisprudence. (People v. Davis (2009) 46 Cal.4th 539, 583.)

Finally, defendant claims we should reverse because the prosecutor used a peremptory challenge to excuse K.S., a prospective juror with a disability, in violation of state law. But defendant did not raise this issue in the trial court and thus appellate consideration of the issue is forfeited. (People v. Cunningham (2015) 61 Cal.4th 609, 662.)

III

Defendant further claims the trial court abused its discretion by admitting evidence of defendant’s prior conviction for possession of methamphetamine for sale to show intent and knowledge regarding the current charges.

Evidence Code section 1101, subdivision (a), provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (See also People v. Ewoldt (1994) 7 Cal.4th 380, 393.) However, “this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person’s character or disposition.” (Id. at p. 393.) Evidence Code section 1101, subdivision (b), permits “the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition to commit such an act.”

If evidence is relevant to prove a fact such as intent or knowledge, “the trial court then must consider whether the probative value of the evidence ‘is “substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)’ [Citation.] ‘Rulings made under [Evidence Code sections 1101 and 352] are reviewed for an abuse of discretion. [Citation.]’ [Citation.] ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.)

In a pretrial motion, the prosecutor sought the trial court’s permission to introduce evidence of defendant’s conduct, and conviction for, possession of methamphetamine for sale. The prior conduct occurred in May 2016, within blocks of where defendant committed the current crimes. In that case, defendant possessed eight bindles of methamphetamine totaling 2.91 grams in his backpack, .38 grams of methamphetamine in his shirt pocket, .01 grams of methamphetamine in his sock, and a hypodermic needle. He admitted he possessed the methamphetamine for sale. Defendant was convicted of a violation of Health and Safety Code section 11378, sentenced to two years in state prison, and released from prison in April 2017, just five weeks before he was arrested in this case.

Defendant filed a pretrial motion to exclude evidence concerning his prior possession of methamphetamine for sale. Defendant argued that it was inadmissible character and propensity evidence under Evidence Code section 1101. At the hearing on the motion, the trial court stated, with regard to the materiality of the evidence, “[t]here’s a mental state requirement that the defendant knew and understood the character of the narcotics that he had.” Defense counsel responded: “I don’t think that’s in dispute in this case.”

The trial court ruled the prosecution could introduce the evidence. The prosecution introduced the evidence at trial, and the trial court instructed the jury that it could use the evidence only to determine the intent and knowledge issues.

Defendant now contends admission of the evidence was an abuse of discretion. Specifically, he claims the evidence was immaterial because his knowledge was not a disputed issue “in light of defense counsel’s representation she did not intend to dispute motive or knowledge of the nature and character [o]f the controlled substances.” Defendant asserts defense counsel’s response required the trial court to ask defendant whether he was willing to stipulate that he was aware of the character of the substances and intended to possess them. For this novel proposition, defendant offers no authority, and we know of none. (Cal. Rules of Court, rule 8.204(a)(1)(B); McComber, supra, 72 Cal.App.4th at p. 522 [failure to cite authority forfeits point].) On this record, defendant’s knowledge remained at issue and the evidence was material. Defendant claims that “[i]f the nature and character of the narcotics in [defendant’s] possession were not in dispute, then the basis for the admissibility of his 2016 conduct and conviction under Evidence Code section 1101, subdivision (b) should have been limited to its consideration as evidence of intent to sell.” But defendant did not stipulate to knowledge of the nature and character of the narcotics; therefore, that issue was in dispute. (See People v. Waidla (2000) 22 Cal.4th 690, 723 & fn. 5 [not guilty plea puts all elements in dispute].)

The remainder of defendant’s arguments concerning the admissibility of the 2016 conduct and conviction assume the trial court should have limited the issues based on materiality. We reject these arguments because the trial court had no duty to so limit the issues that had been placed at issue by defendant’s not guilty plea, and thus defendant’s intent was not the only basis for admissibility.

Defendant also argues the probative value of the 2016 conduct and conviction was substantially outweighed by a substantial danger of undue prejudice. (Evid. Code, § 352.) We disagree. The evidence was strongly probative as to defendant’s knowledge of the nature and character of the drugs he possessed and his intent to sell them, and the trial court correctly instructed the jury concerning the limits of the evidence’s use. Also, the evidence did not “ ‘pose[] an intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” ’ ” (People v. Tran (2011) 51 Cal.4th 1040, 1047, see also People v. Turner (2017) 13 Cal.App.5th 397, 410-411 [discussing admissibility of prior similar conduct].)

Finally, defendant attempts to couch admission of the evidence of his 2016 conduct and conviction as a due process violation, even though he did not raise a due process objection in the trial court. In any event, admission of evidence under state rules of evidence generally does not violate due process protections. (People v. Fuiava (2012) 53 Cal.4th 622, 696-697.) No such violation appears here.

IV

In addition, defendant argues the trial court abused its discretion in denying defendant’s motion to dismiss his “30-year-old juvenile strike prior” for armed robbery in 1987.

Section 1385, subdivision (a), gives the trial court authority, on its own motion or upon application of the prosecution “and in furtherance of justice,” to order an action dismissed. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court held that a trial court may use section 1385 to dismiss a prior strike conviction allegation for purposes of sentencing under the three strikes law. (Id. at p. 504.) Some of the considerations relevant to the trial court’s ruling are defendant’s background, character, and prospects for the future. (People v. Carmony (2004) 33 Cal.4th 367, 377.) The ruling denying a request to dismiss a prior strike allegation “is subject to review under the deferential abuse of discretion standard.” (Id. at p. 374.)

It is not clear why defendant refers to his 1987 conviction for armed robbery as a “juvenile strike prior.” He was 23 years old in 1987. The probation report reflects that defendant was convicted of armed robbery in 1987, which constituted a strike under the three strikes law. Since then, he has been in custody more than 20 times for violations of parole and for nonviolent crimes. His last incarceration for felony possession of methamphetamine for sale ended just five weeks before he committed the crimes in this case. The trial court ruled that based on the totality of the circumstances of this case, the imposition of a sentence pursuant to the three strikes sentencing scheme clearly fell within the purpose of the three strikes law, and the trial court declined to exercise its discretion to dismiss the prior strike conviction allegation.

Based on our review of the record, we conclude the trial court did not abuse its discretion in denying the motion to dismiss the prior strike conviction allegation.

V

On October 8, 2019, the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.). Effective January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b) to remove statutory authority for the one-year enhancement for a prior prison term except when the offense underlying the prior prison term was a sexually violent offense. Defendant contends we must strike the one-year enhancement imposed by the trial court under section 667.5, subdivision (b) because the prior prison term was not for a sexually-violent offense. The Attorney General agrees, as do we.

When defendant was sentenced, the trial court imposed a consecutive one-year term based on defendant’s prior prison term for possession of methamphetamine for sale. Defendant argues that, because his conviction is not yet final on appeal, we should apply the ameliorative measure. Indeed, amendments to statutes that reduce punishment apply to convictions not yet final on appeal unless the Legislature did not intend for the amendment to so apply. (In re Estrada (1965) 63 Cal.2d 740, 744.) Nothing in Senate Bill No. 136 and its legislative history evinces a legislative intent to prohibit application of the amendment to convictions not yet final. Therefore, we presume the Legislature intended retroactive application of the amendment because the Legislature has deemed the former penalty too severe. (Id. at pp. 744-745.)

Defendant argues we should merely strike the consecutive one-year enhancement and not remand for resentencing, effectively reducing his sentence by one year. But that is not the proper procedure in this case because the trial court may exercise its discretion in sentencing differently on remand, now knowing that defendant is not subject to a consecutive one-year enhancement for the prior prison term. The trial court did not impose the maximum sentence available for defendant’s convictions, having imposed middle terms, and it is not clear from the record how the trial court will exercise its discretion on remand. Therefore, on remand the trial court may reconsider its sentencing choices, with the understanding that the aggregate term imposed may not be increased. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259; but see People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388 [no remand for resentencing if the record is clear as to how the trial court would exercise its discretion].)

DISPOSITION

We strike the one-year sentencing enhancement for defendant’s prior prison term under section 667.5, subdivision (b) and vacate the sentence. The judgment is otherwise affirmed, and the matter is remanded to the trial court to resentence defendant, prepare an amended abstract of judgment, and send the amended abstract of judgment to the Department of Corrections and Rehabilitation.

/S/

MAURO, Acting P. J.

We concur:

/S/

HOCH, J.

/S/

KRAUSE, J.