Filed 1/23/20 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

VALENTIN MARTINEZ,

Defendant and Appellant.

F077914

(Super. Ct. Nos. F17904952, F18904055)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge.

Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Valentin Martinez asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. We vacate the sentence and remand for resentencing. In all other respects, we affirm.

BACKGROUND

On August 17, 2017, the victim’s vehicle was stolen. Several days later, an officer stopped the vehicle and noticed it had mismatched license plates, neither of which belonged to the vehicle. Defendant, who was driving with three passengers, told the officer he bought the vehicle for $600. The officer arrested him.

On October 17, 2017, in case No. F17904952, defendant pled no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1) and admitted having previously suffered a vehicle theft conviction (Pen. Code, § 666.5), in exchange for a three-year sentence lid and dismissal of the remaining charges. The trial court granted mandatory supervision in a residential treatment program.

Before completing the residential treatment program, defendant left and committed another offense. He was charged in case No. F18904055.

On July 17, 2018, in case No. F18904055, defendant pled no contest to second degree burglary (§§ 459, 460, subd. (b); count 1) and admitted committing the burglary while released from custody in case No. F17904952 (§ 12022.1) and having served prior prison terms for grand theft (§ 487) and unlawfully driving or taking a vehicle (Veh. Code, § 10851) (§ 667.5, subd. (b)), in exchange for an indicated five-year split sentence of three years in local custody, followed by two years on mandatory supervision.

The same day, the trial court sentenced defendant to a five-year term on both cases. In case No. F18904055, the court imposed the five-year split term, as agreed, by imposing three years for the burglary and two years for the section 12022.1 enhancement. The court stayed the two prior prison term enhancements. In case No. F17904952, the court imposed a three-year local term, to be served concurrently to the term in case No. F18904055.

On August 8, 2018, defendant filed a notice of appeal in case No. F17904952. On May 31, 2019, this court construed the notice of appeal to be from the judgments in both cases.

On September 15, 2019, appointed appellate counsel asked the trial court to correct presentence custody credits. The trial court ordered the abstract of judgment amended to reflect the correction.

On September 25, 2019, an amended abstract of judgment was filed.

On January 1, 2020, after defendant filed his brief, Senate Bill No. 136 (2019–2020 Reg. Sess.), amending section 667.5, subdivision (b), became effective.

DISCUSSION

Senate Bill No. 136 amended section 667.5, subdivision (b) to limit prior prison term enhancements to only prior terms that were served for a sexually violent offense as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Neither of defendant’s prior prison terms was served for a sexually violent offense, and thus they both must be stricken.

DISPOSITION

The sentence is vacated and the matter remanded to the trial court for resentencing. The court is ordered to strike the two prior prison term enhancements (§ 667.5, subd. (b)). Following resentencing, the court is directed to prepare a new abstract of judgment and forward a certified copy to the appropriate entities. In all other respects, the judgment is affirmed.