Filed 3/10/22 P. v. Hosburgh 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT*

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. (Retired Judge of the Merced Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Richard Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Chad Michael Hosburgh 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. Defendant responded, requesting that we strike his prior prison term enhancements and restitution fines. We strike the two prior prison term enhancements and remand for resentencing. In all other respects, we affirm.

BACKGROUND

On April 10, 2019, police found a rifle, high-capacity magazines, and miscellaneous ammunition that belonged to defendant, a felon, in the garage of the house where he was renting a room.

On May 13, 2019, the Merced County District Attorney charged defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1);[1] count 1), and unlawful possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 2). The information further alleged defendant had suffered one prior “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served two prior prison terms (§ 667.5, subd. (b)).

On August 22, 2019, defendant pled no contest to possession of a firearm by a felon (count 1) and admitted the two prior prison term allegations.

The same day, the trial court imposed the upper term of three years in prison on count 1, plus two consecutive one-year prior prison term enhancements. The court suspended execution of the five-year sentence and granted defendant probation for three years.

On January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) went into effect. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).)

On June 9, 2020, after defendant pled no contest to assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) in case No. 20CR-01437, the trial court found defendant in violation of probation in the present case.

At the sentencing hearing on June 16, 2020, the trial court ordered the execution of the previously imposed and suspended five-year prison sentence in the present case and imposed three concurrent years in case No. 20CR-01437. The court awarded credits in both cases and imposed various fines and fees. In the present case, the court imposed a $40 court security assessment fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $1,500 restitution fine, and a $1,500 parole revocation restitution fine (§§ 1202.4, 1202.45). In case No. 20CR-01437, the court imposed a $40 court security assessment fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $900 restitution fine, and a $900 parole revocation restitution fine (§§ 1202.4, 1202.45).

On September 23, 2020, defendant filed a motion to dismiss based on outrageous government conduct in surreptitiously recording and accessing his privileged prison calls with defense counsel. The prosecutor filed an opposition to the motion to dismiss, and after an evidentiary hearing, the trial court denied the motion.

On October 27, 2020, defendant filed a notice of appeal.

DISCUSSION

We requested that the parties submit supplemental briefs on the application of Senate Bill No. 136 to this case, and they both agree, as do we, that we should strike the prior prison term enhancements and remand for resentencing.

Senate Bill No. 136 (2019−2020 Reg. Sess.) amended section 667.5, subdivision (b) to limit prior prison term enhancements only to 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.) Defendant’s prior prison terms were not served for sexually violent offenses, and thus the two enhancements must be stricken.

DISPOSITION

The two prior prison term enhancements (§ 667.5, subd. (b)) are stricken. The matter is remanded to the trial court for resentencing according to the applicable legislative changes. In all other respects, the judgment is affirmed.

* Before Hill, P. J., Poochigian, J. and Franson, J.

[1] All statutory references are to the Penal Code unless otherwise noted.