Filed 6/10/22 P. v. Griffin CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In 2019, in resolving three criminal cases, appellant Ransom Huntley Griffin (Appellant) pled no contest to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and burglary (Pen. Code, § 459),[1] and admitted a prior prison term (§ 667.5, subd. (b)). Pursuant to the negotiated disposition, the trial court sentenced Appellant to eight years, four months

in prison, which included one year for the prior prison term enhancement.

On appeal, Appellant argued this court should strike the prior prison term enhancement due to the enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which limits imposition of the section 667.5, subdivision (b), enhancement to prior prison terms for sexually violent offenses. Appellant argued the rest of his sentence under the plea agreement should remain intact.

In our original opinion, we agreed we were required to dismiss the one-year enhancement, but we disagreed that the rest of Appellant’s sentence under the plea agreement remained intact. We directed the trial court to dismiss the enhancement and to allow the parties to reconsider the plea agreement.

Appellant petitioned for review. The Supreme Court granted review and deferred briefing “pending consideration and disposition of a related issue in People v. Hernandez, S265739.” (People v. Griffin, review granted April 20, 2022, S266521.) Before the Supreme Court issued a decision in Hernandez, the Governor signed Senate Bill No. 483 (2021-2022 Reg. Sess.) (SB 483), which addressed the issues presented in Hernandez, including whether a plea agreement remains intact following the striking of a prior prison term enhancement. The Supreme Court subsequently transferred Appellant’s case back to this court with directions to reconsider the cause in light of SB 483. We now direct the trial court to dismiss Appellant’s enhancement under former section 667.5, subdivision (b), while leaving intact the remainder of his sentence under the plea agreement.

BACKGROUND[2]

In December 2018, the Lake County District Attorney filed a felony complaint in case number CR952884 charging Appellant with possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of materials with the intent to make an explosive (§ 18720), and possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)). The complaint further alleged that Appellant was prohibited from possessing a firearm pursuant to Welfare and Institutions Code sections 8100 and 8103.

In February 2019, the Lake County District Attorney filed a felony complaint in case number CR953175-B charging Appellant with entry with intent to commit larceny (§ 459), malicious destruction of personal property over $400 (§ 594, subd. (a)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The complaint further alleged that Appellant personally used and discharged a firearm within the meaning of various Penal Code provisions, and that two prior prison term enhancements applied under section 667.5, subdivision (b). The prior prison term enhancements were based on convictions for weapons offenses (§§ 21310 & 22210).

Also in February 2019, the Lake County District Attorney filed a felony complaint in case number CR953305-A charging Appellant with felony transportation of methamphetamine with intent to sell (Health & Saf. Code, § 11379, subd. (a)), felony possession of methamphetamine for sale (Health & Saf. Code, § 11378), felony withholding of a ring stolen by extortion (§ 496, subd. (a)), misdemeanor possession of psilocybin mushrooms (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor possession of paraphernalia (Health & Saf. Code, § 11364). The complaint further alleged two prior prison term enhancements under section 667.5, subdivision (b).

In September 2019, Appellant entered into a plea agreement for all three cases. In case numbers CR952884 and CR953305-A, Appellant pled no contest to possession of a controlled substance for sale (Health & Saf. Code, § 11378). The stipulated term was eight months for each offense. In case number CR953175-B, Appellant pled no contest to burglary (§ 459) and admitted a prior prison term (§ 667.5, subd. (b)). The stipulated term was seven years: a six-year term for burglary and the one-year enhancement.

In October 2019, the trial court sentenced Appellant to a total prison term of eight years four months pursuant to the plea agreement. Appellant appealed, and this court directed the trial court to dismiss the section 667.5, subdivision (b) enhancement and to allow the parties to reconsider the plea agreement.

Appellant petitioned for review. The California Supreme Court granted the petition and deferred briefing pending its decision in People v. Hernandez, review granted December 22, 2021, S265739. Subsequently, the Governor signed SB 483, which addressed the issues presented in Hernandez. The Supreme Court transferred Appellant’s case to this court with directions to reconsider the cause in light of the recent legislative enactment. Neither party submitted a supplemental brief.

DISCUSSION

Under the version of the statute in effect when Appellant was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for “any felony,” with an exception not applicable here. (Stats. 2018, ch. 423, § 65.) Senate Bill 136 substantially narrowed the enhancement, limiting its application only to a prior prison term served “for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§ 667.5, subd. (b); see also People v. Matthews (2020) 47 Cal.App.5th 857, 862.)[3] Appellant contends and respondent agrees that Senate Bill 136 applies retroactively to non-final judgments. (Matthews, at pp. 864–865.) Because neither of the prior prison term enhancements alleged below in case number CR953175-B were based on a sexually violent offense, the one-year enhancement imposed under section 667.5, subdivision (b) must be stricken.

Effective January 1, 2022, SB 483 added section 1171.1, which invalidates any enhancement under former section 667.5, subdivision (b), that was imposed prior to January 1, 2020, “except for any enhancement imposed for a prior conviction for a sexually violent offense.” (§ 1171.1, subd. (a); Stats. 2021, ch. 728, § 3; see also People v. Flores (2022) 77 Cal.App.5th 420, 443.) The statute specifies procedures for resentencing and, among other requirements, provides: “Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.” (§ 1171.1, subd. (d)(1).) An uncodified portion of SB 483 articulates the Legislature’s intent regarding the effect of the enactment on sentences negotiated as part of plea agreements: “It is the intent of the Legislature that any changes to a sentence as a result of the act that added this section shall not be a basis for a prosecutor or court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.)

SB 483 makes clear that the proper remedy in the present case is to strike the invalid prior prison term enhancement while leaving the remainder of the plea agreement intact. Remanding for resentencing would not serve any purpose because section 1171.1, subdivision (d)(1), precludes the court from imposing a longer sentence than the one originally imposed, and the trial court here imposed the upper term on the principal term for the burglary offense. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342 [no need to remand for resentencing after striking a section 667.5, subdivision (b), enhancement where trial court imposed the maximum sentence].) Therefore, we modify the judgment by striking the one-year prior prison term enhancement and direct the trial court to prepare an amended abstract of judgment.

Disposition

The judgment is modified by striking the one-year prior prison term enhancement imposed under section 667.5, subdivision (b). The trial court is directed to prepare an amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

SIMONS, Acting P.J.

I concur.

BURNS, J.

WISEMAN, J. *

(A159104)

[1] All undesignated statutory references are to the Penal Code.

[2] The details of the underlying offenses are not relevant to the issues on appeal and are not summarized herein.

[3] Section 667.5, subdivision (b) provides in relevant part, “[I]f the new offense is any felony for which a prison sentence . . . is imposed . . . , 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 . . . .”

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.