Filed 1/24/20 P. v. Preciado CA2/8

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ISAAC ORLANDO PRECIADO,

Defendant and Appellant.

B293778

(Los Angeles County

Super. Ct. No. VA146231)

APPEAL from an order of the Superior Court of Los Angeles County. Yvonne T. Sanchez, Judge. Affirmed and remanded with directions.

Jerome J. Haig, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * * * * * *

Defendant and appellant Isaac Orlando Preciado was sentenced to an eight-year prison term arising from an assault on his girlfriend. His sentence included two consecutive one-year enhancements pursuant to Penal Code section 667.5, subdivision (b).

In our original unpublished decision filed October 15, 2019, we affirmed defendant’s conviction. A week earlier, on October 8, 2019, Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) was signed by the governor. Senate Bill No. 136 eliminated the one-year enhancement under Penal Code section 667.5, subdivision (b), except for sexually violent offenses. The new law did not become effective until January 1, 2020. Defendant filed a petition for rehearing in light of the passage of the new law which we denied, finding that defendant could seek appropriate relief once Senate Bill No. 136 went into effect.

Defendant filed a petition for review with the Supreme Court. The Supreme Court granted review and, on January 2, 2020, transferred the matter to this court with directions to vacate our original decision and reconsider the cause in light of the passage of Senate Bill No. 136.

Having done so, we again affirm the judgment of conviction against defendant and remand the matter for a new sentencing hearing.

BACKGROUND

In October 2017, defendant and appellant Isaac Orlando Preciado assaulted his girlfriend using a screwdriver. She suffered bruises and a cut that required stitches.

Defendant was charged by information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) [count 1]), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4) [count 2]), infliction of injury to a dating partner (§ 273.5, subd. (a) [count 3]) and misdemeanor giving false information to a law enforcement officer (§ 148.9, subd. (a) [count 4]). A great bodily injury enhancement was alleged as to counts 1, 2 and 3, and further, as to counts 2 and 3, it was alleged defendant used a deadly and dangerous weapon (screwdriver) in the commission of the offenses (§ 12022, subd. (b)(1)). It was also alleged defendant suffered two prison priors (§ 667.5) and one prior conviction of a serious or violent felony within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(j), § 1170.12) and section 667, subdivision (a)(1).

On the first day of trial, the prosecution moved to dismiss counts 1 and 2 pursuant to Penal Code section 1385 and the court granted the request. The case proceeded to a jury trial on counts 3 and 4. The prior conviction allegations were bifurcated, and defendant later waived his right to a jury trial on those allegations.

Before opening statements were given, defendant agreed to withdraw his plea of not guilty on the misdemeanor (count 4) and enter a plea of no contest. The court accepted defendant’s waivers on the record and found his plea to be knowing, intelligent and voluntary. The court deferred sentencing on count 4.

The jury found defendant guilty on count 3 and found not true the great bodily injury and deadly weapon use allegations. Defendant admitted his prior strike and the two prison priors.

At the sentencing hearing, the court found there were no mitigating factors. The court sentenced defendant to state prison for eight years calculated as follows: a three-year middle term on count 3, doubled due to the prior strike, plus two consecutive one-year terms for each prison prior. The court also imposed a consecutive six-month term on count 4 to be served in any penal institution. The court did not impose a five-year enhancement pursuant to Penal Code section 667, subdivision (a)(1).

The court awarded defendant 697 days of presentence custody credits. The court imposed an $80 court operations assessment (Pen. Code, § 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), and imposed and stayed a $300 parole revocation fine (Pen. Code, § 1202.45).

Defendant timely appealed. We appointed appellate counsel to represent defendant. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised.

This court sent notice of the Wende filing to defendant on June 26, 2019, and again on July 19, 2019, after receiving notice of a new custody address for defendant. Defendant did not file a supplemental brief. We affirmed defendant’s conviction.

As we explained above, defendant then filed a petition for rehearing after the issuance of our original decision raising the issue of the passage of Senate Bill No. 136.

DISCUSSION

The sole appellate issue concerns the passage of

Senate Bill No. 136 which went into effect while defendant’s petition to the Supreme Court was pending.

Senate Bill No. 136 amended Penal Code section 667.5, subdivision (b) limiting the imposition of one-year enhancements to prior convictions 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 (Jennings).)

“By eliminating [Penal Code] section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 (2019–2020 Reg. Sess.) to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses.” (Jennings, supra, 42 Cal.App.5th at p. 682.) Defendant has not suffered any prior convictions for sexually violent offenses and is entitled to the benefit of the amendatory provisions. (In re Estrada (1965) 63 Cal.2d 740, 744-745; see also People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired”]; and, People v. Vieira (2005) 35 Cal.4th 264, 305 [“a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal”].)

In light of the new law, the two 1-year enhancements must be stricken from defendant’s sentence. Because the trial court may wish to revisit its sentencing choices now that the one-year prison priors no longer apply to defendant, we remand for a new sentencing hearing. (People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review . . . ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances’ ”].)

DISPOSITION

The one-year enhancements are stricken and the matter is remanded to the trial court for a new sentencing hearing at which defendant is entitled to be present and represented by counsel. (People v. Buckhalter (2001) 26 Cal.4th 20, 34-35.)

The judgment of conviction is affirmed in all other respects.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

STRATTON, J.