Filed 12/5/19 P. v. Payne 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MYCHAL DONTE PAYNE,

Defendant and Appellant.

E071977

(Super.Ct.No. FVI17002040)

OPINION

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Reversed in part and remanded for resentencing.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On November 16, 2018, a first amended information charged defendant and appellant Mychal Donte Payne with second degree robbery under Penal Code section 211 (count 1); resisting an executive officer under section 69 (count 2); and attempted second degree robbery under sections 664 and 211 (count 3). The information also alleged that in count 1, a principal was armed with a firearm during the commission of the offense under section 12022, subdivision (d). The information further alleged that defendant had one prior serious and violent felony conviction for robbery, and had served a prior prison term for that same offense under sections 667, subdivisions (a)(1), (b) through (i), 667.5, subdivisions (a) and (b), and 1170.12, subdivisions (a) through (d).

Defendant pled not guilty and denied the special allegations. The trial court granted defendant’s motion to bifurcate the prior conviction allegation from the jury trial. Because the prosecution was unable to locate a witness for the attempted robbery charge in count 3, that count was dismissed on the prosecution’s motion.

On December 12, 2018, the jury found defendant guilty as charged, and found the firearm allegation to be true. In a bifurcated proceeding, the trial court found true the prior conviction and prison term enhancement allegations.

The trial court denied defendant’s request to strike the serious and violent prior conviction allegation, and sentenced him to a total term of 21 years four months in state prison. The trial court imposed a five-year term on count 1 doubled to 10 years under the “Three Strikes” law. The court also imposed a consecutive three-year term for the true finding on the firearm allegation. Moreover, the trial court imposed a three-year sentence on count 1, under section 667, subdivision (a), for a total sentence of 16 years on count 1. The court then sentenced defendant to the middle term of eight months (one-third the middle term of two years)—doubled to 16 months pursuant to the Three Strikes law, to be served consecutively for count 2. Finally, the court imposed additional consecutive terms of three years and one year under section 667.5, subdivisions (a) and (b), respectively. The court awarded defendant 325 days of custody credit, consisting of 283 actual days and 42 days of conduct credit.

Defendant filed a timely notice of appeal.

On October 28, 2019, we invited counsel to submit supplemental briefs addressing the effect of Senate Bill No. 136’s amendments to section 667.5, subdivision (b). On October 28, 2019, defendant filed his supplemental brief. The People filed a letter response on October 30, 2019. On November 14, 2019, defendant filed a supplemental reply letter.

B. FACTUAL HISTORY

On July 27, 2017, Gregory Hillers obtained a large sum of money from the bank for his company. He then drove to a storage facility to pay one of the company’s bills. While he was parked on the street next to the storage facility, a car pulled up in front of Hillers’s vehicle. A man got out of the passenger side of the car, pointed a gun at Hillers, and demanded that he hand over the money. Hillers gave the man the bag with the money. The man also took a folder and Hillers’s insulated lunch bag. The man got back into the vehicle and it sped off.

Hillers called 911 and described the suspects’ vehicle. A short time later, a deputy drove Hillers to a location where the suspects’ vehicle was stopped. Hillers identified his lunch bag and the folder the suspect had stolen from his car. The deputies returned $7,547 of the stolen cash to Hillers. Deputies also found a firearm underneath the passenger seat of the suspects’ vehicle. One of the fingerprints lifted from the vehicle’s trunk matched defendant’s fingerprints.

San Bernardino County Sheriff’s Deputy David Moore pursued the suspect vehicle. When the vehicle came to a stop, both occupants of the vehicle exited and ran. Deputy Moore chased defendant and saw money falling from defendant’s pockets. When defendant came to a dead end, he turned to face Deputy Moore; cash was clenched in both of defendant’s hands. Defendant repeatedly failed to comply with the deputy’s commands to get on the ground. Defendant then became combative, adopting a fighting stance; he shoved the deputy and hit the deputy on the back and head. Deputy Moore discharged his taser twice on defendant but the probes had no effect either time. Deputy Moore then applied his taser to defendant’s body multiple times and this allowed the deputy to handcuff defendant. He was taken into custody and the majority of the stolen money was recovered from defendant’s pants pockets.

DISCUSSION

A. THE CASE IS REMANDED FOR RESENTENCING

Defendant contends that the trial court should have stricken two of his prior-prison-term enhancements because the court had already sentenced him under a serious felony enhancement predicated on the same prior offense. The People agree. The People also contend that the trial court improperly imposed three years instead of five years for the section 667, subdivision (a), enhancement, which was an unauthorized sentence. We agree with the parties and remand this case for resentencing.

1. LEGAL BACKGROUND

An unauthorized sentence is cognizable on appeal, even without an objection. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) The California Supreme Court has held that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a . . . section 667 enhancement, the greatest enhancement, but only that one, will apply.” (People v. Jones (1993) 5 Cal.4th 1142, 1150; see also People v. Smith (1995) 33 Cal.App.4th 1586, 1600.) The Supreme Court reasoned that, although the voters intended severe punishment for recidivism, “the voters did not specify that enhancements under sections 667 and 667.5 were both to apply to the same prior offense.” (Jones, at pp. 1152-1153.) The court further explained that “[a]ny other reading of the subdivision would lead to peculiar results. If a prior felony is ‘violent’ enough to qualify for an enhancement under section 667.5, it will a fortiori be noxious enough to qualify as ‘serious’ under subdivision (a) of section 667, and will almost always have resulted in a prison term.” (Id. at p. 1150.) The court then went on to conclude that because “the voters did not specify that enhancements under sections 667 and 667.5 were both to apply to the same offense,” only the greatest of the enhancements may be imposed. (Id. at p. 1153.)

2. THE TRIAL COURT IMPROPERLY SENTENCED DEFENDANT

Defendant asks that “this court modify the judgment by striking the three-year and one-year terms imposed under Penal Code section 667.5, subdivisions (a) and (b), respectively.” The People concede. Moreover, the People contend that five years, instead of three, should have been imposed under section 667, subdivision (a). Defendant agrees.

In this case, after the jury rendered its verdict, the trial court found defendant’s prior serious felony conviction allegation under section 667, subdivision (a)(1), and two prior prison term allegations under section 667.5, subdivisions (a) and (b), to be true. The prior serious felony enhancement and the two prior prison term enhancements were based on a single offense—a 2009 felony robbery conviction. At sentencing, the trial court improperly imposed three years, instead of five years, for the prior serious felony enhancement under section 667, subdivision (a), and consecutive terms of three years and one year for the prior prison term enhancements based on the same prior offense. The trial court, however, was precluded from imposing two additional prior prison term enhancements that were predicated on the same felony conviction as the enhancement under section 667, subdivision (a). (People v. Jones, supra, 5 Cal.4th at p. 1152.) Based on the above, we remand this case to the trial court (1) to correct the unlawful three-year sentence on the section 667, subdivision (a), enhancement, by either imposing the required five-year term or striking it entirely; and (2) striking the sentences imposed for the section 667.5, subdivisions (a) and (b), enhancements.

3. THE SECTION 667.5, SUBDIVISION (B), ENHANCEMENT IS STRICKEN BASED ON A RECENT AMENDMENT TO THE PROVISION

Under current law, which applied at the time of defendant’s sentencing, section 667.5, subdivision (b), provides for a one-year enhancement of a prison term for a new offense for each of the prior separate prison term served for “any felony” with an exception not applicable here.

In the supplemental briefings, the parties addressed the recent amendment to section 667.5, subdivision (b) pursuant to Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (Senate Bill 136). On October 8, 2019, the Governor signed Senate Bill 136 into law. Effective January 1, 2020, Senate Bill 136 amends section 667.5, subdivision (b), to remove the one-year enhancement for prior prison terms, except when the offense underlying the prior prison term was a sexually violent offense. Section 667.5, subdivision (b), as amended by Senate Bill 136 provides, in pertinent part: “[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (Italics added.) Therefore, Senate Bill 136 eliminates the prior prison term enhancement except in cases involving sexually violent offenses.

In this case, defendant’s one-year Penal Code section 667.5, subdivision (b), prior prison term enhancement should be stricken because his prior robbery conviction does not qualify as a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). As noted above, Senate Bill 136 is effective on January 1, 2020. The statute is retroactive and applies to cases not yet final as of its effective date. This case will not be final by January 1, 2020. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) Therefore, the People concede that section 667.5, subdivision (b), as amended, applies retroactively to defendant, because the amended statute leads to a reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745 [for a non-final conviction, “where the amendatory statue mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”].)

Accordingly, pursuant to Senate Bill 136, we strike the sentence imposed for the section 667.5, subdivision (b) enhancement.

DISPOSITION

The matter is remanded for resentencing to correct the sentence on the section 667, subdivision (a), enhancement to five years, or strike it entirely; and to strike the sentences on the section 667.5, subdivision (a) and (b), enhancements. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

MENETREZ

J.