Filed 1/7/20 P. v. Walker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS GAFNEY WALKER,

Defendant and Appellant.

G055929, G055950

(Super. Ct. Nos. 13WF2533,

13CF0710)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Julian W. Bailey and Cheri T. Pham, Judges. Affirmed as modified.

Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Two separate juries in two separate trials convicted defendant Thomas Gafney Walker of multiple residential burglaries, sex offenses, and related crimes. Walker additionally had three strike priors, three serious felony priors, and six prison priors. After the first trial, the judge imposed a 93-year-to-life sentence. After the second trial, a different judge imposed a consecutive 68-year-to-life sentence. This is a consolidated appeal from both trials.

Walker contends that the superior court improperly denied three Marsden motions to replace his appointed counsel, and improperly denied two Faretta motions to represent himself. We disagree and find no abuse of discretion. Walker also asks this court for a remand so the trial court can exercise its discretion to dismiss the serious felony priors. But the record clearly indicates the lower court would not dismiss the five-year sentence enhancements on remand.

Finally, Walker also asks this court to strike his six prison priors based on a recent change in the law. The Attorney General concedes the issue and we agree. Thus, we will order the trial court to strike the six prison priors and modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.

I

FACTS AND PROCEDURAL BACKGROUND

On January 27 and February 13, 2013, Walker entered two homes in Costa Mesa and committed sex offenses. On February 25, Walker entered two homes in Santa Ana and committed other crimes. The prosecution filed two separate cases.

The Costa Mesa Case (13WF2533)

On January 27, 2013, Patricia lived in a Costa Mesa apartment with her four children. At about 10:00 p.m., she went to sleep. Patricia awoke in her bed to find Walker lying behind her. Walker grabbed Patricia’s hair and was trying to take off her shorts. As Patricia struggled, Walker got on top of Patricia and raped her. Patricia got away, ran into the bathroom, and tried to close the door, but Walker was able to get in. Walker sodomized Patricia in the bathroom. Patricia was able to get out of the bathroom and call the police, but Walker ran away.

On February 13, 2013, Jenny lived in a Costa Mesa home with her parents, brother, and sisters. That evening, after changing into her pajamas, Jenny went downstairs, entered the bathroom, and turned on the lights. As she was closing the door, Walker turned off the lights and told her to be quiet. Walker held a knife to Jenny’s throat. Jenny orally copulated Walker as he pulled on her hair. After Walker left, Jenny went upstairs and told her parents what happened.

Fingerprint evidence linked Walker to Patricia’s home. DNA evidence linked Walker to both Costa Mesa homes.

The Santa Ana Case (13CF0710)

On February 25, 2013, Ana lived with her family in a Santa Ana apartment on Lyon Street. At about 6:30 a.m., Ana was getting ready for high school when she saw Walker entering the living room. Walker had a beer in his hand and appeared to be under the influence. Walker came towards Ana, who walked backwards. Walker got within a foot of Ana, put his hands on her waist, and looked at her with an intense stare. Ana was able to alert other family members. Walker fled as the police were being called.

On February 25, 2013, Norma lived with her husband and children in a Santa Ana apartment on Lyon Street. At about 9:00 a.m., Norma was alone when she saw Walker walking down the stairs within her apartment. Norma tried to leave, but Walker blocked her. Walker told Norma to keep quiet because the police were outside. Hours later, Walker eventually fled on a stolen bicycle.

Ana and Norma, as well as other percipient witnesses, positively identified Walker as the intruder in the Santa Ana homes.

Court Proceedings

In March 2013, the prosecution filed a complaint, and later an information in the Santa Ana case (13CF0710). The prosecution charged Walker with: two first degree residential burglaries, one kidnapping (Norma), and one first degree robbery (Norma). The information further alleged sentence enhancements related to the burglaries (nonaccomplices present), and multiple prior convictions (three strike priors, three serious felony priors, and various prison priors).

In August 2013, the prosecution filed a complaint, and later an information in the Costa Mesa case (13WF2533). The prosecution charged Walker with: two first degree residential burglaries, two sex offenses during a residential burglary (Patricia and Jenny), and forcible oral copulation (Jenny). The information further alleged a sex offense sentence enhancement and multiple prior convictions (three strike priors, three serious felony priors, and various prison priors).

In January 2014, the trial court heard a Marsden motion to replace Walker’s first appointed attorney. The court granted the motion and appointed Frederick McBride to represent Walker in both cases. In October 2016 and September 2017, the court denied two Marsden motions by Walker to replace McBride. In September 2017, the court denied two Faretta motions by Walker to represent himself.

On November 2, 2017, following a five-day jury trial in the Santa Ana case, a jury returned guilty verdicts as to three of the four crimes (the jury found Walker not guilty as to one of residential burglaries). The jury found the enhancement true (nonaccomplice present). The trial court dismissed two of the prison priors and found true the remaining prior convictions. The court imposed an aggregate prison sentence of 93 years to life.

On November 13, 2017, the trial court denied a third Marsden motion by Walker to replace McBride.

On November 21, 2017, following a seven-day jury trial in the Costa Mesa case, the jury returned guilty verdicts as to all alleged crimes, but did not find the one strike allegation to be true. The trial court dismissed three of the prison priors and found true the remaining prior convictions. The court declined to dismiss any of the three strike priors. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court imposed an aggregate prison sentence of 68 years to life. The court ordered the sentence to be served consecutive to the sentence in the Santa Ana case.

Walker filed two appeals. This court consolidated the appeals prior to briefing and oral argument.

II

DISCUSSION

Walker contends the trial court abused its discretion by denying three Marsden motions and two Faretta motions. Due to recent legislative changes, Walker also requests that his cases be remanded so the court can exercise discretion to dismiss the serious felony priors, and he asks that we strike his prison priors.

A. Motions to Replace Appointed Counsel (3)

A defendant has the constitutional right to be represented by counsel at all critical stages of the criminal proceedings. (U.S. Const., 6th Amend.) However, a defendant only has a limited right to have counsel of his or her choice when counsel is appointed by the court. (Marsden, supra, 2 Cal.3d 118.) A defendant who is represented by an appointed attorney may ask the court to discharge that attorney and substitute new counsel if the defendant’s right to counsel would be substantially impaired by continuing with the original attorney. (Marsden, supra, 2 Cal.3d at p. 123.)

“‘“[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.”’” (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) The court is required to appoint new counsel if the defendant demonstrates that the failure to do so would substantially impair his constitutional right to effective assistance of counsel. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) Generally, a Marsden motion is granted when appointed counsel is not providing adequate representation, or when counsel and the defendant have “such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones, supra, 29 Cal.4th at pp. 1244-1245.) The standard of review is for an abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) An abuse of discretion occurs only when the court has acted in an arbitrary or capricious manner, or its decision exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920-921.)

1. First Motion to Replace McBride

On October 28, 2016, Walker said that McBride had represented him for over two years, but there had “been a continuous breakdown in communications.” Walker told the court he had concerns about “discovery concerning some D.N.A.” Walker also expressed concerns about evidence he thought should be suppressed. Walker said that he had only seen McBride once in four years.

McBride told the trial court he had done between 300 to 400 trials. McBride said he had seen Walker “at least three times. Two days ago I sat down and explained the strategy on the case that we’re going to go on first.” McBride said “the other day I gave him his discovery on the D.N.A. which I had only recently maybe a month earlier had received.” McBride told the court that his investigator had “talked to Mr. Walker on several occasions. I have very lengthy notes and reports on his conversations.”

After hearing further statements, the court said: “It’s hard for me to imagine that someone with 45 years of experience who has tried over three, four hundred cases to not . . . be a competent and qualified attorney to represent you on these very serious matters.” The court ruled that: “Based on what the court has heard today, the court finds no grounds to [relieve] Mr. McBride.” Walker said: “I can’t stand him. I don’t want him. Get him away from me. He’s the antichrist.” The court responded: “Sir, I’m not relieving him.”

2. Second Motion to Replace McBride

On September 13, 2017, about two months before the first trial, McBride told the court “the whole time I have been having Mr. McBride, there is just a communication breakdown. I can’t seem to get any progress done, you know, with discovery. I have been requesting certain discovery issues that I haven’t received. [¶] He has been telling me he has been waiting for the last three years for DNA results.” Walker said “it is ineffective assistance of counsel, wanton misconduct, moral turpitude, among other things. It is just ridiculous. And I would like to replace him if possible, please.”

The court responded: “Well, I haven’t heard anything that would indicate that his performance is deficient in any way. You know, these cases are set for trial. [¶] Mr. McBride, are you ready for trial?”

McBride responded: “No. We filed a 1050 this morning before he asked for a Marsden.” McBride told the court, “I engaged an expert. There are two separate items of evidence and two separate instances that came up positive DNA for Mr. Walker. I engaged an expert to go through all of that. [¶] After a significant period of time, she completed a report maintaining while she was very helpful in giving me areas of cross examination, she agreed with the Crime Lab.”

After asking additional questions about the DNA evidence, the court said: “Okay, from what I can see, the representation is not deficient. Mr. McBride is doing everything he can as far as the DNA is concerned, and the issues that are involved. [¶] You haven’t told me anything that affects his ability to represent you.” The court told Walker: “You have to work together. And Mr. McBride is an excellent attorney.” Walker responded: “Since I am stuck with him, can I get a Faretta waiver? I would like to go pro per.” The court told Walker that he could pursue the Faretta motion in front of another judge and denied the Marsden motion.

3. Third Motion to Replace McBride

On November 13, 2017, after the first trial (the Santa Ana case) and as the second trial (the Costa Mesa case) began, Walker told the court that it had “been a total nightmare the whole time I’ve had him, your honor. I’ve tried to rid of the guy several times.” Walker told the court that “he doesn’t give me the discovery I want. He turns over information to the prosecution.” Walker told the court that McBride “fell completely below the standard of what should be — attorney responsibility and obligation to protect his client.”

McBride told the court, “I’ve been engaged in exclusively in criminal law for over 40 years; tried just about every kind of case there is . . . ; and then this case, what we’ve done, a very, very significant amount of effort done on the DNA evidence. A significant amount of work was done on the DNA aspects of this case.” McBride went on to explain further details regarding the DNA evidence and the discovery issues with the prosecution.

Walker said, “I really didn’t request a hearing here. I just requested to not sit next to him during the ordeal at this trial.” The court responded: “All right. Well, I haven’t heard evidence sufficient to relieve counsel, particularly with the jury in the hallway, and I haven’t heard the cross-examination of the evidence of the witnesses for the DNA. We’re going to get that sometime in the future. But at this point, what I took to be a motion to relieve counsel and now you’ve told me is really just a motion not to sit next to him — both of those are denied.”

4. Analysis

In each Marsden hearing, the court gave Walker an opportunity to provide details regarding McBride’s alleged deficient performance. Most of Walker’s concerns had to do with DNA evidence. In each instance, McBride explained the state of the DNA evidence and his actions relative to that evidence. Based on McBride’s explanations it appeared to each judge—as it does to this court on review—that McBride is an experienced criminal defense attorney who was thoroughly conversant in the intricacies of DNA evidence, as well of the details of the instant cases. In short, there is nothing to indicate that McBride was providing Walker with inadequate representation. (See People v. Jones, supra, 29 Cal.4th at pp. 1244-1245.)

While it does appear that Walker did not trust or get along with McBride, that is not the standard for the replacement of an appointed attorney in a Marsden motion. “In determining whether defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result, trial courts properly recognize that if a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.” (See People v. Crandell (1988) 46 Cal.3d 833, 860, abrogated on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.)

There were several disagreements between Walker and McBride regarding trial tactics, particularly as to the DNA evidence. But again, a disagreement in trial tactics does not meet the legal standard in a Marsden motion. (See Drumgo v. Superior Court (1973) 8 Cal.3d 930, 935 [“Even were there evidence of a disagreement as to trial tactics . . . substitution of counsel would not necessarily be required”].)

In sum, it does not appear to us that the trial court’s rulings regarding any of Walker’s Marsden motions were arbitrary, capricious, or beyond the bounds of reason. Thus, we find no abuse of discretion.

Walker argues that he “was understandably frustrated about how his case was progressing with his [trial] counsel.” Walker cites People v. Jimenez (2008) 165 Cal.App.4th 75, as “relevant to” the DNA matters in the instant case. We disagree. In Jimenez, a jury convicted the defendant of a bank robbery and related crimes based largely on DNA evidence. (Id. at p. 77.) Over the defendant’s foundational objections, the court admitted into evidence a criminalist’s testimony that linked swabs purportedly taken from the defendant with evidence from the crime scene. (Id. at p. 80.) The Court of Appeal reversed defendant’s convictions based on chain-of-custody issues: “The trial court’s overruling of Jimenez’s foundational objections to the admission of the reference sample and to the criminalist’s comparison of the reference sample with the handlebar swabs was an abuse of discretion.” (Id. at p. 81.)

Here, Walker is not challenging the trial court’s admission of his DNA reference samples based on chain-of-custody issues. Indeed, Walker has raised no evidentiary issues whatsoever on appeal. Rather, Walker’s challenge is to the court’s denials in three of his four Marsden motions. Again, we find nothing in the record to indicate that the court abused its discretion in any of its Marsden rulings.

 

B. Motions for Self-Representation (2)

Although a criminal defendant has the constitutional right to be represented by counsel, a defendant may nonetheless choose to waive that right and represent himself. (Faretta, supra, 422 U.S. at p. 821 [“The Sixth Amendment . . . implies a right of self-representation”].) The denial of a Faretta motion is reviewed for an abuse of discretion. (People v. Windham (1977) 19 Cal.3d 121, 128-129.)

“A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial.” (People v. Welch (1999) 20 Cal.4th 701, 729.)

“The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.” (People v. Burton (1989) 48 Cal.3d 843, 852-853.) In evaluating whether a Faretta motion has been made within a reasonable time, courts generally consider such factors as “the ‘quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’” (Ibid.)

1. First Motion for Self-Representation

On September 13, 2017—the same day the trial court denied Walker’s second Marsden motion—Walker filed a Faretta waiver form referencing both the Costa Mesa case (13WF2533) and the Santa Ana case (13CF0710). The prosecution filed an opposition arguing that both parties were ready for trial. The prosecution argued that Walker’s Faretta motion was untimely because it was being made about four years after the cases had been filed, and after two failed attempts to relieve appointed counsel.

On September 14, 2017, the trial court conducted a hearing. Walker said that “there’s a lot of discovery that I haven’t seen.” The court asked Walker if he would be ready for trial on September 28. Walker responded: “If you’re dumping it on my lap and asking me to be ready – I don’t even think at this time you could be ready, judge, for that amount of time, to be honest.” The court told Walker: “Well, Mr. McBride has had the case for a while and he is ready.” Walker said: “So, I can try to be – yeah, I can try to.” The court asked Walker: “Have you had any education on DNA?” Walker responded: “No, just what I’ve read.”

After further questioning, the court said: “The case has been around for three and a half years. Your request to represent yourself is not timely at this point on the eve of trial. Both counsel are ready and have had years to prepare for this case. [¶] I’ll deny your motion based on an untimely request.”

2. Second Motion for Self-Representation

On Thursday, September 28, 2017, the Costa Mesa case had been sent to a courtroom for a jury trial. McBride informed the court that he was to receive some additional DNA reports the following day, and he wanted to stipulate to starting the case on Monday. Walker disagreed with McBride, refused to stipulate, and filed a second Faretta waiver form referencing only the Costa Mesa case number (13WF2533).

The trial court conducted a hearing. The court inquired as to whether Walker was aware of the charges and his maximum possible sentence. Walker responded that the case involved: “A knife in the commission of a burglary. A weapon.” The prosecutor said: “There is no allegation regarding a knife . . . .” Walker said that his case was “probably a life case.” Walker said that he had no legal training. Walker said that he was able to pick the jurors without having received all of the discovery. When the court asked how many peremptory challenges Walker would be able to exercise, Walker said that he did not know. When asked to describe the details of the case, Walker said, “If I had my reports all in front of me, I would be able to tell you that.”

After asking additional questions, the court said: “I find that Mr. Walker is not fully informed of his exposure. He does not know the maximum exposure in this case. He does not know all of the charges against him. He does not know the full facts of the case. He refuses to waive time, but yet he doesn’t know the facts of the case. He doesn’t know what evidence [is] going to be presented by the People against him. And based on all of that, I find that he will be incompetent to represent himself at this time.” Walker responded that he wanted to have the court recused. The court denied that motion, stating: “Unfortunately, that is also untimely.”

3. Analysis

The trial court found Walker’s Faretta motions to be untimely. Because the motions were made over three years after the cases had been filed, this finding was not beyond the bounds of reason. Both motions were also made virtually on the eve of trial. Given Walker’s lack of legal training, and lack of knowledge regarding the charges, it appears that “the disruption or delay which might reasonably be expected to follow” if the Faretta motions had been granted would have been considerable. (See People v. Burton, supra, 48 Cal.3d at pp. 852-853.) In short, the court weighed the relevant factors and made a rational judgment. Thus, we find no abuse of discretion.

In his opening brief, Walker notes that: “DNA evidence was presented in case number 13WF2533 [the Costa Mesa case] where there was no conclusive eye-witness identification of appellant, but not in case number 13CF0710 [the Santa Ana case].” Walker contends that because the court’s inquiries during the Faretta motions concerned the DNA evidence in the Costa Mesa case (13WF2533), the court “did not address his motion as to case number 13CF0710 [the Santa Ana Case].” Therefore, Walker argues that the: “Failure to conduct a Faretta hearing in case 13CF0710 [the Santa Ana case] requires reversal.” We disagree.

The trial court appointed McBride to represent Walker in both cases very early in the proceedings, before the preliminary hearings. After the prosecution filed informations in the superior court, the court then routinely called both cases together for calendaring, and other nontrial matters. Therefore, we interpret the court’s denials of Walker’s two Faretta motions to be denials as to both the Costa Mesa case (13WF2533) and the Santa Ana case (13CF0710). If Walker desired a separate ruling as to the Santa Ana case it was his responsibility to press the trial court for such a ruling and the issue is therefore forfeited on appeal. (See People v. Cunningham (2001) 25 Cal.4th 926, 984 [a defendant’s “failure to press for a ruling waives the issue on appeal”].)

C. Prior Serious Felony Enhancements

Walker contends that because of Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), effective January 1, 2019, his cases should be remanded for resentencing so the trial court may exercise its discretion to dismiss the five-year prior serious felony conviction enhancements. (Pen. Code, § 1385.) We disagree; under these circumstances, a remand would be an idle act.

SB 1393 amended section 667, subdivision (a), and section 1385, subdivision (b). Courts now have discretion to dismiss or strike prior serious felony convictions for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)

Walker claims SB 1393 applies retroactively since his cases were not yet final on appeal on the effective date of SB 1393. The Attorney General concedes the retroactivity issue; however, he argues that remand is unnecessary. We agree.

Generally, a remand is required “unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) In other words, “if ‘“the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.”’” (Ibid.) The same rationale applies here.

In the Santa Ana case (13CF0710), Judge Cheri T. Pham sentenced Walker to a total term of 93 years to life in prison: three consecutive 25-year-to-life terms based on the strike priors; three five-year terms for the serious felony priors; and three one-year terms for the prison priors.

The court said “the nature, seriousness, and circumstances of the crime, as compared to other instances of the same conduct, is more serious because Mr. Walker entered not just one, but two residences. In the first residence, he entered in the early morning hours while the victim . . . and her family were still sleeping. In the second residence, Mr. Walker remained for hours directing the victim . . . throughout the apartment and then ultimately stealing a bicycle.” The court found the victims to be particularly vulnerable.

“As to the facts related to the defendant, the Court finds that Mr. Walker does have an extensive prior record of criminal conduct dating back to 1985 when he was a minor. As an adult, he has numerous convictions which do indicate a pattern of increasingly serious criminal conduct, including three prior serious felony convictions, all first degree residential burglaries. [¶] The court further finds that his prior performance on probation and parole was unsatisfactory and that there is strong likelihood that, if not imprisoned, Mr. Walker will be a danger to others.”

In the Costa Mesa case (13WF2533), Judge Julian W. Bailey sentenced Walker to a total term of 68 years to life in prison as follows: two consecutive 25-year-to-life terms based on the strike priors; three five-year terms for the serious felony priors; and three one-year terms for the prison priors.

The court said to Walker that “it’s my intention to sentence you consecutively to the sentence that was imposed by Judge Pham on the other case.” The court declined to dismiss the strike priors. (See People v. Superior Court (Romero), supra, 13 Cal.4th 497.) The court said “given the seriousness of the conduct in this case, the defendant’s prior criminal history, his character, background, and his personal circumstances, including his prospects – I note that he has three prior strike offenses that are serious felonies, and his career as a burglar, at least according to the probation report, began at about age 12. I’ve weighed and considered the issues I’ve referenced. [¶] As to the current case, the crimes were just sick and reprehensible. That gives the court significant concern, and the harm that was done is truly unspeakable. Your victims in this case will never recover completely from what you did to them, and I decline to exercise my discretion in striking any and all of the strikes.”

The court said: “The facts relating to these crimes, the nature, seriousness, and circumstances . . . when compared to other instances of the same crime, these are more serious in my opinion. [¶] In that regard, I take into consideration that children were present during the attack on Patricia and that the defendant armed himself with a knife in preparation for his attack on Jenny. The victims were particularly vulnerable; Jenny because of her age and Patricia because she was attacked in her bedroom with three very young children present.”

The court noted: “The facts as they relate to the defendant, I find him to be an extremely violent and dangerous person. He’s preyed upon vulnerable people within their homes. I don’t believe balancing is required because of the mandates of the Three Strikes law, but I’ve done so in any event and find that there are no circumstances in mitigation that would outweigh circumstances in aggravation.”

Here, given the comments by both judges at the sentencing hearings, as well as the decision not to dismiss Walker’s strike priors, the record clearly indicates to us that the court would not dismiss Walker’s serious felony priors on remand. Thus, in this case “‘“remand would be an idle act and is not required.”’” (See People v. McDaniels, supra, 22 Cal.App.5th at p. 425.)

D. Prison Priors

Effective January 1, 2020, the Legislature approved Senate Bill No. 136, approved by Governor October 8, 2019 (2019-2020 Reg. Sess.) ch. 590, § 1. The change in the law generally eliminates the one-year sentencing enhancement for a defendant who has served a prior prison term within five years (there is an exception for sexually violent prior offenses). (§ 667.5, subd. (b).)

Here, in both cases, the trial court imposed three one-year prison priors for crimes that were not sexually violent offenses (six years total). Walker contends that the statute is ameliorative and therefore applies retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744.) The Attorney General concedes the issue and we agree.

Ordinarily, we would remand the matter for resentencing. However, because the maximum allowable sentence has already been imposed in each case, a remand for resentencing “‘“would be an idle act and is not required.”’” (See People v. McDaniels, supra, 22 Cal.App.5th at p. 425.)

III

DISPOSITION

The trial court is directed to strike Walker’s sentence enhancements for the six prison priors, modify the abstract of judgment, and forward a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed as modified.

MOORE, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.