Filed 1/13/20 P. v. George CA4/1

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN J. GEORGE,

Defendant and Appellant.

D076506

(Super. Ct. No. SCD275691)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified with directions.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Fraser and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

This is an appeal following a resentencing hearing. Marvin George was convicted of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count one); driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (b); count two); and hit and run following injury (Veh. Code, § 20001, subd. (a); count three). As to counts one and two, the defendant personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). George admitted one prison prior (§ 667.5, subd. (b)); two serious felony priors (§ 667, subd. (a)(1)); and two strike priors (§ 667, subds. (b)-(i)).

George was sentenced to an indeterminate term of 25-years-to life, consecutive to a 14-year determinate term.

George appealed, and this court remanded the case to the trial court to exercise its discretion to consider striking one or more of the serious felony priors. The trial court declined to strike the priors and re-imposed the original sentence.

George again appealed.

In the interim, the Legislature passed, and the Governor signed Senate Bill No. 136 which will invalidate prison priors such as that imposed here, effective January 1, 2020. George contends he is entitled to have the benefit of the new statute since his judgment will not be final at that time. The People agree George is entitled to have his one-year prison prior stricken. We also agree and will strike the prison prior and affirm the judgment as modified.

DISCUSSION

Under Senate Bill No. 136 the prison prior as alleged in this case will no longer qualify as an enhancement to a prison sentence. The parties agree that under the holding of In re Estrada (1965) 63 Cal.2d 740, 744-748, defendants whose convictions are not final should have the benefit of statutory changes which lessen punishment for their offenses. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308; People v. Chavez (2018) 22 Cal.App.5th 663, 708-712). George’s judgment will not be final as of January 1, 2020.

The parties agree the appropriate remedy is for this court to order the sentence modified to strike the section 667.5, subdivision (b) prior and affirm the judgment.

DISPOSITION

The judgment in this case is modified to strike the prior alleged under section 667.5, subdivision (b) and to reduce the determinate term to 13 years. In all other respects the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the reduced term and to forward the abstract to the Department of Corrections and Rehabilitation.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.