People v. Olivas CA5 ( 2021 )

Filed 10/5/21 P. v. Olivas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
F079369
Plaintiff and Respondent,
(Super. Ct. No. F15901384)
v.
ERNESTO ALONSO OLIVAS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman
and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Franson, J.
Defendant Ernesto Alonso Olivas was found guilty by jury trial of rape, forcible
oral copulation, and false imprisonment by violence. In addition, he admitted one prior
serious felony conviction, one prior “strike,” and two prior prison term allegations. On
appeal, he contends his two prior prison term enhancements should be stricken in light of
Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We order the prior prison
term enhancements stricken and affirm in all other respects.
PROCEDURAL SUMMARY
On July 21, 2016, the Fresno County District Attorney filed a first amended
information charging defendant with forcible rape (Pen. Code, § 261, subd. (a)(2);1
count 1), forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2), and false
imprisonment by violence (§ 236; count 3). As to counts 1 and 2, the information further
alleged defendant used a deadly weapon within the meaning of section 12022.3,
subdivision (a), and as to count 3, he used a deadly and dangerous weapon within the
meaning of section 12022, subdivision (b)(1). The information also alleged defendant
had suffered a prior strike conviction within the meaning of the “Three Strikes” law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a prior serious felony conviction (§ 667,
subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)).
On April 24, 2019, a jury found defendant guilty of all counts, but found the
weapon use allegations not true. Defendant admitted all prior allegations.
On May 22, 2019, the trial court sentenced defendant to an aggregate term of
26 years in state prison as follows: as to count 1, eight years doubled to 16 years
pursuant to the Three Strikes law, plus five years pursuant to section 667,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
subdivision (a)(1), and one year pursuant to section 667.5, subdivision (b);2 as to count 2,
four years to run consecutively; and as to count 3, four years to run concurrently.
DISCUSSION3
Defendant’s sole contention on appeal is that his two prior prison term
enhancements should be stricken pursuant Senate Bill 136. The People concede and we
agree.
Senate Bill 136 amended section 667.5, subdivision (b) to limit prior prison term
enhancements to only 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.) The amendment
applies retroactively to all cases not yet final on Senate Bill 136’s effective date of
January 1, 2020. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re
Estrada (1965) 63 Cal.2d 740, 742.) “ ‘ “[F]or the purpose of determining retroactive
application of an amendment to a criminal statute, a judgment is not final until the time
for petitioning for a writ of certiorari in the United States Supreme Court has passed.
[Citations.]” [Citation.]’ ” (People v. Johnson (2019) 32 Cal.App.5th 938, 942.) In this
case, defendant’s two prior prison terms were served for convictions for burglary (§§ 459
& 460) and child endangerment (§ 273a, subd. (a)), not for sexually violent offenses.
Because defendant’s case was not yet final on January 1, 2020, he is entitled to the
benefit of Senate Bill 136 and his prior prison term enhancements should be stricken.
When an appellate court strikes a portion of a sentence, remand for “ ‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its sentencing
2 The trial court stayed one prior prison term. It stated, “I’ll stay the [section]
667.5[, subdivision] (b) as to the release on the burglary charge in the present case given
that I’m using that prior as the five year prior to [section] 667[, subdivision] (a)(1).”
3 Because defendant raises only a sentencing issue, the facts underlying the offenses
are not relevant and are omitted from this opinion.
3.
discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) On remand, the trial court is permitted to impose the same sentence it
originally imposed if some other appropriate method of sentence calculation exists to
reach the same result. (See People v. Torres (2008) 163 Cal.App.4th 1420, 1431–1433.)
However, a trial court may not impose a higher sentence in that situation. (Id. at
pp. 1432–1433; see People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on other
grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn.1; People v. Mustafaa
(1994) 22 Cal.App.4th 1305, 1310–1311.) Thus, we remand for resentencing so the trial
court may reconsider the entire sentencing scheme when striking defendant’s two prior
prison terms.4
DISPOSITION
The two prior prison term enhancements under section 667.5, subdivision (b) are
stricken and the matter is remanded for resentencing. The trial court is directed to
prepare an amended abstract of judgment and forward it to the appropriate entities. The
judgment is affirmed in all other respects.
4 We note that although the trial court stayed one prior prison term, it should have
stricken the enhancement instead. (See People v. Jones (1992) 8 Cal.App.4th 756, 758
[“an enhancement, if not imposed, must be stricken”].)
4.