People v. Lewis CA1/2 ( 2022 )


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  • Filed 1/19/22 P. v. Lewis CA1/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
    THE PEOPLE,
    Plaintiff and Respondent,
    A162555
    v.
    DARONTA TYRONE LEWIS,                                                  (Contra Costa County
    Super. Ct. Nos. 23250685,
    Defendant and Appellant.
    52014249, 23336583)
    Defendant Daronta Lewis was serving a nine-year sentence, including
    three one-year prior prison term enhancements under Penal Code section
    667.5, subdivision (b),1 when he pleaded no contest to new charges and was
    sentenced to a new 11-year term, again including the prior prison term
    enhancements. However, in the interim, Senate Bill No. 136 limited those
    prior prison term enhancements to “sexually violent” offenses not at issue
    here, and Lewis argues that he is entitled to the retroactive benefit of that
    legislation. We agree, and accordingly we will strike the enhancements.
    BACKGROUND
    In August 2018, in Solano County Superior Court Case No.
    FCR330522, Lewis pleaded no contest to one count of robbery (Pen. Code,
    1   Further undesignated statutory references are to the Penal Code.
    1
    § 211) with an enhancement for use of a weapon (§ 12022, subd. (b)(1)) and
    three one-year enhancements for prior prison terms (§ 667.5, subd. (b)). (See
    People v. Lewis (Oct. 5, 2021, A162630) [nonpub. opn.], [pp. 1–2].)2 In
    September, the trial court sentenced Lewis to a total term of nine years,
    comprised of the upper term of five years for the robbery conviction and four
    consecutive one-year terms for each of the four enhancements. (Ibid.)
    On October 8, 2019, the Governor signed Senate Bill No. 136, which
    became effective January 1, 2020. It amended section 667.5, subdivision (b)
    to provide that the one-year prior prison term enhancement shall be imposed
    only for certain “sexually violent” offenses. (See § 667.5, subd. (b); Stats.
    2019, ch. 590, § 1.)
    In 2017 and 2020, Lewis was charged in six cases in Contra Costa
    County with numerous counts, including multiple counts of felony vandalism
    (Case Nos. 02-325068-5, 05-200866-2, 05-201035-3, 02-333464-6, 05-201424-
    9, 02-333658-3).3
    On April 2, 2021, Lewis pleaded no contest to one count of felony grand
    theft from a person (§ 487, subd. (c)) in Case No. 2-325068-5 and two counts
    of felony vandalism (§ 594, subd. (a)) in Case No. 2-333658-3 in exchange for
    a sentence of two years in state prison, to run consecutive to his sentence in
    Solano County Case No. FCR330552.
    On April 2, the trial court sentenced Lewis to a term of 11 years in
    state prison. The trial court first resentenced Lewis to nine years in Case
    No. FCR330552—again the upper term of five years for second degree
    2We granted Lewis’s unopposed motion for judicial notice of the
    October 5, 2021 opinion in his direct appeal and the September 14, 2017
    information in Solano County Case No. FCR330552.
    3 We omit discussion of the facts of the underlying offenses as they are
    not relevant to the single issue on appeal.
    2
    robbery, one year for the weapons enhancement, and three one-year terms for
    three prison prior enhancements. The trial court then sentenced Lewis to the
    agreed-upon two-year sentence in the new cases—one eight-month term for
    the grand theft count and two eight-month terms for each of the vandalism
    counts, to run consecutively.
    Lewis appealed.
    While that appeal was pending, on October 8, 2021, the Governor
    signed Senate Bill No. 483, effective January 1, 2022, which added
    section 1171.1, subdivision (a):
    “(a) Any sentence enhancement that was imposed prior to January 1,
    2020, pursuant to subdivision (b) of Section 667.5, except for any
    enhancement imposed for a prior conviction for a sexually violent offense as
    defined in subdivision (b) of Section 6600 of the Welfare and Institutions
    Code is legally invalid.” (Stats. 2021, ch. 728, § 3.)
    Section 1171.1 further provides that once the sentencing court
    identifies defendants serving a term including a one-year prior prison term
    enhancement, the court “shall recall the sentence and resentence the
    defendant,” (§ 1171.1, subd. (c)), and that such resentencing “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).) And the legislation
    provides: “It is the intent of the Legislature that any changes to the sentence
    as a result of [Senate Bill No. 483] shall not be a basis for a prosecutor or
    court to rescind a plea agreement.” (Stats. 2021, ch. 728, § 1.)
    3
    DISCUSSION
    Lewis argues that he is entitled to the retroactive benefit of Senate Bill
    No. 136, and that the three one-year prior prison term enhancements must be
    stricken because they are not based on “sexually violent” offenses. The
    Attorney General agrees, as do we. (See People v. Matthews (2020)
    
    47 Cal.App.5th 857
    , 864–865 [Senate Bill No. 136 applies retroactively to
    non-final judgments].)
    However, the parties differ slightly on the appropriate remedy. Lewis
    asks that we simply modify the judgment to strike the enhancements,
    arguing that resentencing is unnecessary because there are no discretionary
    decisions for the trial court to make at resentencing. The Attorney General
    agrees that we should strike the enhancements, but also asks that we
    remand for resentencing.
    We conclude that resentencing is unnecessary under the circumstances
    here. Lewis was sentenced under a plea agreement, Senate Bill No. 483
    expresses the Legislature’s intent that any changes to a sentence resulting
    from Senate Bill No. 136 “shall not be a basis for a prosecutor or court to
    rescind a plea agreement” (Stats. 2021, ch. 728, § 1), and the Attorney
    General acknowledges that that measure “implicitly prohibits recission of a
    plea agreement” under circumstances such as these. Nor does the Attorney
    General offer any argument why resentencing is appropriate or identify any
    discretionary decisions to be made by the trial court at resentencing.
    Accordingly, we will simply strike the one-year prior prison term
    enhancements.
    DISPOSITION
    The three one-year prison prior enhancements are stricken. The case is
    remanded for preparation of an amended abstract of judgment.
    4
    _________________________
    Richman, Acting P.J.
    We concur:
    _________________________
    Stewart, J.
    _________________________
    Miller, J.
    People v. Lewis (A162555)
    5
    

Document Info

Docket Number: A162555

Filed Date: 1/19/2022

Precedential Status: Non-Precedential

Modified Date: 1/20/2022