Filed 1/8/20 P. v. Hull CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ZACHARY HULL,

Defendant and Appellant.

C087338

(Super. Ct. Nos. 17FE006203 & 16FE004823)

After a jury found defendant Zachary Hull guilty of multiple burglaries, the trial court imposed a sentence that included a five-year enhancement for a prior serious felony conviction. Defendant contends we should remand the matter to allow the trial court to exercise its discretion whether to strike that enhancement. We agree, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are irrelevant to the issues raised on appeal. Simply put, in January 2018, a jury found defendant guilty of four counts of first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a).) The trial court found true the allegation that defendant previously had been convicted of a serious felony, which finding triggered both the five-year enhancement pursuant to section 667, subdivision (a), and sentencing pursuant to the “Three Strikes” scheme of sections 1170.12 and 667, subdivisions (b)-(i).

In June 2018, the trial court sentenced defendant to a total of 22 years 4 months in state prison, consisting of eight years for one burglary (the middle term of four years, doubled); consecutive terms of two years eight months (one-third the middle term, doubled) on the three other burglaries; five years for the prior serious felony; and one year four months for a violation of probation in case No. 16FE004823.

DISCUSSION

Defendant argues that we should remand to permit the trial court to exercise its discretion whether to strike the five-year serious-felony enhancement. The People concede. We agree with the parties.

When defendant was sentenced, the court had no discretion to strike the five-year serious felony enhancement. But Senate Bill No. 1393 went into effect on January 1, 2019, and amends sections 667, subdivision (a) (Stats. 2018, ch. 423, § 64), and 1385, subdivision (b) (Stats. 2018, ch. 1013, § 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony allegation for sentencing purposes.

The amendments apply retroactively to this case, which is not yet final. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472-473.)

Because nothing in the record indicates the trial court intended to impose the highest possible term or otherwise clearly indicates it would not exercise its discretion to strike, remand is appropriate to allow the trial court to exercise its discretion as to whether to strike defendant’s prior serious felony enhancement.

DISPOSITION

The cause is remanded so the trial court may consider exercising its discretion under Senate Bill No. 1393.

In all other respects, the judgment is affirmed. The clerk of the trial court is ordered to send a certified copy of an amended abstract of judgment, if any, to the Department of Corrections and Rehabilitation.

/s/

Butz, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Hoch, J.