Filed 1/17/20 P. v. Burton CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLAUDE B. BURTON, JR.,

Defendant and Appellant.

A157895

(Marin County

Super. Ct. No. SC207362A)

Defendant Claude Burton, Jr., pleaded guilty to unlawfully possessing a firearm and ammunition, and he was sentenced to three years and eight months in prison. On appeal, he contends, and the Attorney General concedes, that Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136) applies retroactively to his case and requires reversal of the one-year prior-prison-term enhancement under Penal Code section 667.5, subdivision (b) (section 667.5(b)). By abbreviated opinion, we strike the prior-prison-term enhancement and remand to the trial court for resentencing.

After committing the underlying offenses in December 2018, Burton was charged with four felony counts: possession of a firearm by a felon, unlawful possession of ammunition, carrying a loaded firearm in public by a felon, and carrying a loaded and unregistered firearm in public. Several prior-conviction sentencing enhancements were also alleged, including a prior-prison-term enhancement under section 667.5(b). Burton pleaded guilty to the first two counts and admitted the associated prior-conviction allegations, including the section 667.5(b) allegation, in exchange for dismissal of the other two counts, a four-year lid on his sentence, and the opportunity to file a Romero motion to strike some of his prior convictions.

In June 2019, after denying the Romero motion, the trial court sentenced Burton to a total term of three years and eight months in prison, consisting of a term of 16 months, doubled, for the firearm possession and a consecutive one-year term for the section 667.5(b) enhancement. A term of 16 months, doubled, for the ammunition possession was imposed and stayed.

“Prior to January 1, 2020, section 667.5[(b)] required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. [Citation.] Courts nevertheless had discretion to strike that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of January 1, 2020, Senate Bill No. 136 . . . amends section 667.5[(b)] to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b).” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Because Senate Bill No. 136 mitigates punishment, it applies retroactively under In re Estrada (1965) 63 Cal.2d 740 to all cases not yet final as of the bill’s effective date. (Jennings, at pp. 681–682.) Therefore, because none of Burton’s prior offenses were sexually violent, the section 667.5(b) enhancement cannot stand.

The one-year prior-prison-term enhancement under section 667.5(b) is reversed, and the judgment is otherwise affirmed. The matter is remanded for resentencing consistent with this opinion. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682; see also People v. Buycks (2018) 5 Cal.5th 857, 893.)

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Sanchez, J.

People v. Burton A157895