People v. Anderson CA2/4 ( 2020 )

Filed 9/25/20 P. v. Anderson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B293736
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA072499)
v.
LENORE NICOLAS ANDERSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Stephen I. Goorvitch, Judge. Affirmed as Modified.
Myra Sun, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Steven D. Matthews, Supervising Deputy Attorney General,
and Ryan M. Smith, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant Lenore Nicolas Anderson appeals from a judgment of
conviction. By information, he was initially charged with battery
causing serious bodily injury (§ 243, subd. (d), count 1),1 and vandalism
over $400 (§ 594, subd. (a), count 2). During trial, the court granted the
prosecution’s motion to amend the information to add a count 3, assault
by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)).
The jury found defendant guilty of the amended assault charge in
count 3. On count 1, the jury found defendant guilty of the lesser-
included offense of misdemeanor simple battery (§ 242), and on count 2,
the jury found defendant guilty as charged.
In a bifurcated proceeding, the trial court found that defendant
had suffered a prior strike under the Three Strikes law (§§ 667, subds.
(b)–(j), 1170.12, subds. (a)–(d)), a prior serious felony conviction (§ 667,
subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). The court
sentenced defendant to an overall term of 10 years four months
imprisonment, comprised of the upper term of four years on count 3,
doubled for the prior strike, plus a consecutive term of one year four
months on count 2, and one year for one prior prison term enhancement
(the court did not impose a sentence on the second enhancement, and
noted that it would strike the second enhancement if its failure to
impose the enhancement were incorrect as a matter of law).
On appeal, defendant contends the trial court erred when it
granted the People’s motion to add count 3, when it denied his motion
1 Unspecified references to statutes are to the Penal Code.
2
for acquittal (§ 1118.1) on that charge, and when it denied his motion
for a new trial (§ 1181, subd. (6)). We find no error.
He also contends the trial court abused its discretion and violated
his right to due process by denying him good-time and work-time pre-
sentence custody credits (§ 4019). We agree (as the People concede)
that the court abused its discretion by withholding 82 days of work-time
custody credit. But we disagree with defendant’s contention that the
court violated his right to due process in denying him good-time credit.
Thus, we modify the judgment to add 82 days of work-time credit to the
329 actual days of pre-sentence custody previously awarded, for a total
of 411 days of custody credit.
Finally, we strike the prior prison term enhancements (§ 667.5,
subd. (b)) pursuant to recently enacted Senate Bill No. 136. As
modified, we affirm the judgment.
BACKGROUND2
On October 13, 2017, defendant approached his neighbor, Eduardo
Carranza, while Carranza was inside his garage. After telling Carranza
that he wanted to fight, defendant punched Carranza in the face.
Carranza fell to the ground; not knowing why defendant wanted to
fight, he told defendant to leave. Defendant walked away.
2 We limit our recitation of the facts to those matters necessary to a
determination of the issues raised in this appeal. We do not address the facts
supporting defendant’s conviction on count 2 for vandalism over $400.
3
Two days later, defendant again approached Carranza at his
home. Carranza testified that defendant called out his name as he was
about to get into a car where his wife, Cynthia Hernandez, and their
three children had been waiting. Defendant approached Carranza,
extended his right hand, and said that he wanted to apologize. When
Carranza extended his hand to reciprocate, defendant grabbed
Carranza’s hand, pulled Carranza toward him, and punched Carranza
“hard” in the forehead. Carranza put his hands up to protect himself
while defendant used both fists to punch Carranza on his nose, mouth,
cheek, and both side of his head.
Hernandez testified that she got out of the car and tried to pull
defendant from Carranza, who had fallen to the ground, because she
feared that defendant “was just going to beat him up until he couldn’t
get up any more.” Her attempt was unsuccessful, and defendant
continued punching Carranza.
Carranza’s step-daughter, Lizette, testified that she watched from
the car as defendant pinned Carranza to the ground and continued
“beating” him. Lizette called 911 and told an operator that her father
was being attacked and was “bleeding a lot.” According to Hernandez,
defendant stopped his attack when he heard the police had been called.
Both Lizette and Hernandez estimated that defendant’s attack lasted
two or three minutes. Carranza estimated he had been punched 15
times.
4
When the paramedics arrived, they took photographs of
Carranza’s injuries.3 The photographs were displayed for the jury, and
Carranza identified a “boomerang-shaped, red area” above his left
eyebrow, a gash underneath his lip, and abrasions on his left shoulder
and arm. Carranza testified that he continued to experience swelling
and pain in his face, head, and knee, and had blurry vision in one of his
eyes.
Defendant did not testify in his defense.
DISCUSSION
I. Aggravated Assault Charge in Count 3
A. Relevant Proceedings
Following testimony from Carranza, Hernandez, and Lizette
during its case-in-chief, the prosecution moved under section 1009 to
amend the information to add count 3 charging assault by means of
force likely to inflict great bodily injury (§ 245, subd. (a)(4)). Defense
counsel objected to the amendment on the ground that defendant’s
conduct did not constitute means of force likely to cause great bodily
injury. Counsel also argued the additional count would prejudice
defendant because the battery with serious bodily injury charge on
count 1 required the jury to determine that serious bodily injury was
actually inflicted, whereas the added aggravated assault charge
3 Carranza refused to go to the hospital because he could not afford a
medical bill.
5
required the jury to conclude only that defendant’s use of force was
likely to cause great bodily injury.
The court granted the motion to amend, finding the evidence
presented at the preliminary hearing, as well as at trial, was sufficient
for a jury to find defendant guilty of violating section 245, subdivision
(a)(4). The court reasoned that the amendment would not prejudice
defendant, because the new charge was based on the same incident
giving rise to the charge of battery with serious bodily injury in count 1,
and defendant would be able to further cross-examine Carranza,
Hernandez, or Lizette by recalling them, or by calling them as adverse
witnesses during defendant’s case.
When the prosecution rested, defense counsel moved to dismiss
count 3 under section 1118.1 on the same grounds it had argued during
the prosecution’s motion to amend. The court denied the motion.
Before sentencing, defendant filed a motion for a new trial, or
alternatively, to reduce count 3 to the lesser-included offense of assault
pursuant to section 1181, subdivision (6). Defendant argued the court
should modify count 3 “due to the nature and timing of the charge and
the lack of ability of [defendant] to properly challenge the Count
through-out the trial process.” The court denied the motion, finding
substantial evidence supported the jury’s verdict on count 3.
B. Contentions
Defendant challenges the court’s orders amending the information
to add count 3 (§ 1009), denying his motion for acquittal (§ 1118.1), and
6
denying his motion for a new trial (§ 1181, subd. (6)). His contentions
lack merit.
1. Amendment to Add Count 3
Section 1009 provides the trial court with discretion to permit the
amendment of the information “for any defect or insufficiency, at any
stage of the proceedings,” so long as the amended information does not
“charge an offense not shown by the evidence taken at the preliminary
examination.” We review the court’s rulings under section 1009 for
abuse of discretion. (People v. Hamernik (2016) 1 Cal. App. 5th 412, 424;
In re Man J. (1983) 149 Cal. App. 3d 475, 481 [discretion to permit
amendments is “broad” and “almost invariably upheld”].)
The charge of assault by means of force likely to cause great bodily
injury under subdivision (a)(4) of section 245, requires proof that the
defendant committed “an assault upon the person of another by any
means of force likely to produce great bodily injury.” “Great bodily
injury” in this context refers to bodily injury that is significant or
substantial. (People v. McDaniel (2008) 159 Cal. App. 4th 736, 748.)
Because the statute’s focus is on the likelihood of injury, the
actual production of injury is not required. (People v. Aguilar (1997) 16
Cal. 4th 1023, 1028; People v. Armstrong (1992) 8 Cal. App. 4th 1060,
1065–1066 (Armstrong).) In other words, section 245 refers not to the
significance of the injury sustained, but to the amount of force used that
would likely produce a significant or substantial injury. (People v.
Johnson (2016) 244 Cal. App. 4th 384, 396, fn. 8.) That determination is
7
properly for the jury to decide based on all of the evidence, including but
not limited to the injuries inflicted on the victim. (Armstrong, supra, at
p. 1066.)
With respect to whether the amended charge was shown by the
evidence presented at the preliminary hearing, defendant makes no
specific challenge to the actual evidence presented at the preliminary
hearing. Rather, he states (without citing any of the preliminary
hearing evidence) that “the trial evidence was the same as that at the
preliminary hearing.” To the extent defendant is contending that the
preliminary hearing evidence was insufficient to support the
amendment, he has forfeited the contention. (Brown v. County of
Tehama (2013) 213 Cal. App. 4th 704, 726.)4
As to whether the trial testimony supported the amendment,
Carranza (the victim) and the two percipient witnesses (Hernandez and
Lizette) described the assault in terms that leave no doubt that
defendant assaulted Carranza by means of force likely to produce great
bodily injury. Under the pretense of an apology, defendant sucker
punched Carranza in the face and continued beating him for two to
three minutes. Fearing Carranza was not going to get up from the
beating, Hernandez unsuccessfully tried to pull away defendant. When
the paramedics arrived, they took photographs of gashes to Carranza’s
4 We note that only Carranza testified at the preliminary hearing. He
described the assault with substantially the same specificity as at trial,
without contradiction.
8
forehead and lip. Due to the assault, Carranza continued to suffer from
blurry vision and pain. This evidence amply supported the amendment.
Defendant’s contentions to the contrary are unpersuasive.
Pointing to his acquittal on count 1 for battery with serious bodily
injury, he asserts that whenever a victim does not suffer severe injuries,
the only rational conclusion is that the defendant could not have used
force likely to cause great bodily injury. The contention is fallacious:
the level of injury inflicted is certainly relevant to the question of the
force used, but it is not determinative. (See Armstrong, supra, 8
Cal.App.4th at p. 1065 [“‘the results of an assault are often highly
probative of the amount of force used, [but] they cannot be
conclusive’”].) One can use force likely to create bodily injury, yet be
unsuccessful in inflicting it.5 And to the extent defendant finds
inconsistency in the jury’s verdict on counts 1 and 3 (there is not), that
inconsistency is of no moment. (See § 954; People v. Hussain (2014) 231
Cal. App. 4th 261, 273 [“‘The law generally accepts inconsistent verdicts
as an occasionally inevitable, if not entirely satisfying, consequence of a
criminal justice system’”].)
Next, defendant contends that because he committed a battery on
Carranza, not a mere assault, the court should not have added a charge
5 The cases on which defendant relies lend no support. (See People v.
Taylor (2004) 118 Cal. App. 4th 11, 24 [“great bodily injury” as used in section
245, and “serious bodily injury,” as used in section 243, “have separate and
distinct statutory definitions”]; People v. Bertoldo (1978) 77 Cal. App. 3d 627,
633 [“one may conceivably commit a felony battery without committing an
aggravated assault”], disapproved on another ground in In re Johnny G.
(1979) 25 Cal. 3d 543.)
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of assault. However, recognizing that aggressors should not be
rewarded for completing assaultive acts, the law independently
sanctions assaults and batteries as discrete offenses. (People v.
Colantuono (1994) 7 Cal. 4th 206, 217, superseded by statute on another
ground as stated in People v. Conley (2016) 63 Cal. 4th 646.)
Finally, defendant asserts the amended charge prejudiced his case
because he did not receive written notice of the charge. However, as
defendant concedes, the notice afforded him emanates not from the
information, but from the evidence presented at the preliminary
hearing. (People v. Calhoun (2019) 38 Cal. App. 5th 275, 306.) As we
have discussed, defendant has conceded that the evidence at the
preliminary hearing mirrored the trial evidence. Thus, the preliminary
hearing evidence provided notice of the possibility of the amended
charge. (See People v. Peyton (2009) 176 Cal. App. 4th 642, 660
[upholding amended charge because it was based on “the same course of
conduct,” “involved the same victim,” and dealt with “the same
underlying acts” as the original information].) Moreover, we fail to see
how defendant could possibly have been blindsided, given that the trial
court ruled that defendant could recall Carranza, Hernandez, and
Lizzette for further cross-examination.
To the extent defendant contends the jury was somehow confused
about how to evaluate the evidence, the record does not support his
contention. The jury instructions (CALCRIM Nos. 925, 875) clearly
defined each crime and instructed the jury that defendant need not
touch or injure the victim in order to be convicted of aggravated
10
assault.6 Nothing in the record suggests that the jury was confused
about the instructions.7
In short, the court did not err by amending the information.
2. Denial of Motion for Judgment of Acquittal and Motion for a
New Trial
The foregoing discussion largely disposes of defendant’s
contentions that the trial court erred in denying his motion for
judgment of acquittal and his motion for a new trial.
Section 1118.1 provides that the trial court must order a judgment
of acquittal of one or more charges following the close of the evidence on
either side and before the case is submitted to the jury “if the evidence
then before the court is insufficient to sustain a conviction of such
offense or offenses on appeal.” In reviewing the motion for acquittal, we
independently review the record to determine if substantial evidence
supported the conviction at the time the motion was made. (People v.
Dalton (2019) 7 Cal. 5th 166, 249; People v. Cole (2004) 33 Cal. 4th 1158,
6 CALCRIM No. 875, which defined assault by means of force likely to
produce great bodily injury, provided that “[t]he People are not required to
prove that the defendant actually touched someone,” or that “[n]o one needs
to actually have been injured by defendant’s act.”
7 The jury submitted one question to the court: “If [we] cannot come to a
unanimous decision on the seriousness of the bodily injury inflicted for count
#1, can we deliberate on the lesser charge or does he lose the battery charge
completely?” The court responded: “if you cannot reach a unanimous verdict
on count one for Battery with Serious Bodily Injury, do not reach a verdict on
the lesser included offense of battery.”
11
1213.) We have already described the evidence of defendant’s assault
on Carranza. No further discussion is needed: viewing the record in
the light most favorable to the judgment to determine whether it
discloses substantial evidence (People v. Veamatahau (2020) 9 Cal. 5th
16, 22), the record without a doubt supports the conviction of assault by
means of force likely to produce great bodily injury.
As for the motion for new trial, section 1181, subdivision (6)
provides for a new trial or modification of the verdict to a lesser degree
“[w]hen the verdict or finding is contrary to law or evidence.” We
review the court’s rulings under subdivision (6) of section 1181 for
abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal. 4th 970,
1063; People v. Dickens (2005) 130 Cal. App. 4th 1245, 1252 [discretion to
sustain verdict is “broad” and will not be reversed “‘absent a manifest
and unmistakable abuse of that discretion’”].) Given the evidence
supporting the aggravated assault conviction, and the absence of any
prejudice to defendant from the addition of the charge during trial, the
trial court did not err in denying defendant’s new trial motion.
II. Pre-sentence Custody Credit
Defendant asserts the court violated due process and abused its
discretion when it denied him any pre-sentence, good-time credits,
because it did not provide him advance written notice of its intention to
deny him credits. He also contends the court erred in denying him
work-time credits because there was no evidence that he “refused to
satisfactorily perform labor as assigned by the sheriff” (§ 4019, subd.
(b)). The People agree with defendant’s contention regarding work-time
12
credit, but contend that the court properly denied good-time credits. We
agree with the People.
A. Relevant Proceedings
During the first day of trial on June 12, 2018, the Sheriff’s
Department submitted a disciplinary report chronicling defendant’s
assaults and insubordination while in custody. That day, on the record
and before jury selection, the court summarized three incidents between
December 2017 and April 2018 involving physical attacks and threats,
gassing of deputies, and disobeying orders.
On the third day of trial, the court called Sergeant Steven Bullard
to testify outside the presence of the jury. Bullard testified that during
the morning commute from jail, defendant had urinated on the bus and
requested medical care. When the paramedics arrived at the
courthouse, defendant refused medical attention. According to Bullard,
defendant had done the same thing on eight prior occasions beginning
in December 2017. On the fourth day of trial, Bullard again testified
outside the presence of the jury, and informed the court that defendant
had threatened custodial officers and refused to move inside a
courthouse elevator.
On July 20, 2018, the original date of sentencing, defendant
appeared, but his trial counsel did not. The court continued the hearing
to August 17, and informed defendant and his stand-in counsel that the
parties “should be prepared to address the issue if the defendant can
receive[] good[-]time work[-]time credits.” The court later continued the
sentencing hearing two more times after defense counsel failed to
13
appear. During one of the interim hearings, a bailiff testified that
defendant had complained of chest pains and later refused medical
treatment while in lockup.
The court began the September 17 sentencing hearing by noting
that it had previously notified the parties that they should be prepared
to discuss defendant’s entitlement to good-time and work-time custody
credits. Defense counsel (who had not appeared at the original
sentencing hearing) stated that stand-in counsel had informed him of
the need to be prepared to discuss the issue.
The court stated that it was inclined to deny all good-time and
work-time credits in light of “the sheer number of assaults on deputies,
as well as, disruption of the process.”
Defense counsel responded that he had not addressed the issue
because he did not believe the court (as opposed to the Sheriff’s
Department and Department of Corrections) had the authority to
withhold credits. The court disagreed, and began to pronounce
sentence, at which point defendant interjected:
“THE DEFENDANT: Hey, Your Honor. Hey, Your Honor.
“THE COURT: Sir, if you disrupt the courtroom—
“THE DEFENDANT: Fuck that, homosexual, bitch-ass nigga.
Fuck that, you fag-ass, bitch-ass nigga. Fuck that, homosexual, bitch-
ass nigga. All the—fuck you, bitch-ass nigga.”
Defendant was escorted to lockup by a group of custodial officers.
In defendant’s absence, the trial judge reported that defendant had spit
at him and began fighting the deputies. “And it took five or six deputies
to wrestle him into the lockup area.” The judge stated that he needed
14
to leave the bench “to catch my breath” because the incident had left
him “a bit disturbed.”
Proceeding with sentencing, the court withheld all good-time and
work-time credits on the 329 days of actual credit defendant had
received for time spent in custody. The court reasoned that because
defendant’s in-court misconduct was “the most egregious case” it had
ever witnessed, the court would have withheld the credits without
relying on the disciplinary report.
B. Denial of Good-Time Credits
Defendants are generally entitled to one day of good-time custody
credit for each four-day period of confinement “unless it appears by the
record that the prisoner has not satisfactorily complied with the
reasonable rules and regulations” established by the sheriff. (§ 4019,
subd. (c).)
The sentencing court is vested with discretion to decide whether to
deduct conduct credits for pre-sentence custody. (People v. Duesler
(1988) 203 Cal. App. 3d 273, 276 (Duesler); (People v. Johnson (1981) 120
Cal. App. 3d 808, 814 (Johnson); see also Cal. Rules of Court, Rules
4.310, 4.472.) “The court’s resolution of such a dispute is reviewable for
abuse of discretion, and the court enjoys some discretion in determining
the amount of credit to be withheld for a serious act of misconduct.
[Citations.] But no authority suggests the court’s discretion in the
matter is so broad as to permit it to withhold conduct credits from a
prisoner who has satisfied the statutory prerequisites and is entitled to
receive them, or to grant credits to a defendant who is ineligible to
15
receive them by reason of misbehavior or statutory disability.” (People
v. Lara (2012) 54 Cal. 4th 896, 903 (Lara), fn. omitted.)
Here, the trial court did not abuse its discretion by withholding
good-time conduct credit. The disciplinary report established defendant
had engaged in ongoing acts of insubordination in custody between
December 2017 (two months after he had assaulted Carranza) and
September 2018 (during sentencing). Defendant also engaged in
flagrant conduct in court by spitting, screaming, and cursing at the trial
judge. In light of such consistent and egregious misconduct, an award
of good-time credit in this case would undermine the very purpose of
awarding conduct credits. (See Lara, supra, 54 Cal.4th at p. 906
[conduct credits designed to “foster constructive behavior in prison”].)
Thus, the trial court did not abuse its discretion in denying defendant
good-time credits.
Though defendant’s opening brief appears to question the
impartiality of the trial court’s decision to independently raise the issue
of conduct credits, defendant, in his reply brief, argues that his due
process rights were violated because he was provided insufficient notice
on the court’s intent to rule on the issue. Defendant asserts that
written notice is the real issue. The issue of notice however, was not
raised at the sentencing hearing, and in fact, defense counsel conceded
that he had received actual notice from stand-in counsel. Thus,
defendant has forfeited the issue. (See People v. Cole, supra, 33 Cal.4th
at p. 1205; People v. Bright (1996) 12 Cal. 4th 652, 671, overruled on
another ground in People v. Seel (2004) 34 Cal. 4th 535, 550, fn. 6.)
16
His argument is meritless in any event, as he was twice afforded
“‘advance written notice of the claimed violations of [jail] rules,’” and an
opportunity to rebut the findings of his jail violations and present any
mitigating factors. (Duesler, supra, 203 Cal.App.3d at p. 277, quoting
In re Walrath (1980) 106 Cal. App. 3d 426, 432.) On the first day of trial,
defendant and the court received a copy of the Sheriff’s Department
disciplinary report chronicling defendant’s jail violations. (See Lara,
supra, 54 Cal.4th at p. 906 [credit-limiting facts need not be formally
pled and proven]; People v. Fitzgerald (1997) 59 Cal. App. 4th 932, 936-
937 [information charging defendant with violent felonies imparted
notice that his presentence custody credits would be limited under
section 2933.1].) In addition to the advance written notice of the report,
the court actually notified the parties two months before the continued
sentencing hearing that they should be prepared to discuss defendant’s
entitlement to custody credits. With such advance notice affording
defendant a reasonable opportunity to prepare and present a defense,
defendant’s right to due process was not violated. 8
C. Denial of Work-Time Credits
Defendant’s entitlement to work-time credits is a separate
consideration. (Johnson, supra, 120 Cal.App.3d at pp. 812, 815
8 On appeal, for the first time, defendant purports to challenge the
veracity of the disciplinary report. In doing so, he requests judicial notice of a
class action settlement between inmates at jail facilities in the County of Los
Angeles and the Sheriff’s Department. In light of our conclusion, we deny
defendant’s request for judicial notice.
17
[defendant’s misconduct “cannot serve as the basis for automatically
denying him work/time credits for the entire period of his confinement,
but rather, . . . the grant or denial of such credits must be based on the
standards set forth in section 4019, subdivisions (b) and (d)”].)
“Subject to subdivision (d), for each four-day period in which a
prisoner is confined in or committed to a facility as specified in this
section, one day shall be deducted from the prisoner’s period of
confinement unless it appears by the record that the prisoner has
refused to satisfactorily perform labor as assigned by the sheriff.”
(§ 4019, subd. (b).) Subdivision (d) provides that section 4019 “does not
require the sheriff, . . . to assign labor to a prisoner if it appears from
the record that the prisoner has refused to satisfactorily perform labor
as assigned or that the prisoner has not satisfactorily complied with the
reasonable rules and regulations of the sheriff.”
As the People concede, the record sheds no light on whether
defendant refused to satisfactorily perform labor as assigned by the
Sheriff’s Department, or whether custodial officials failed to provide
him work for his failure to comply with the reasonable rules and
regulations. Absent an evidentiary basis to show defendant is not
entitled such credits, the trial court erred in denying work-time credit.
(See Johnson, supra, 120 Cal.App.3d at p. 815.) We modify the
judgment to reflect a total of 411 days credit against defendant’s prison
term under section 2900.5. That credit consists of 329 days of actual
pre-sentence custody previously awarded, plus 82 days credit under
section 4019.
18
3. Senate Bill No. 136
Defendant contends the trial court imposed an unauthorized
sentence by imposing the prior prison term enhancement under section
667.5, subdivision (b). The People agree that, due to the recent
enactment of Senate Bill No. 136, the court should have stricken the
enhancements.
While this appeal was pending, Senate Bill No. 136 amended
section 667.5, subdivision (b), to restrict the circumstances under which
a one-year sentence enhancement may be imposed for a prior prison
term. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The court imposed a
one-year prior prison term enhancement based on prior convictions for
possession of a loaded firearm (former § 12031, subd. (a)(1)) and
possession of a firearm by a felon (§ 29800, subd. (a)(1)). Section 667.5,
subdivision (b) now allows for the imposition of a one-year prior prison
term enhancement only if the prior prison term was served for a
sexually violent offense.
The People acknowledge Senate Bill No. 136 applies retroactively
to those like defendant whose sentences were not final at the time that
Senate Bill No. 136 became effective. (People v. Chubbuck (2019) 43
Cal. App. 5th 1, 13–14.) We agree, and strike the one-year prior prison
term enhancements (only one of which was actually imposed).
//
//
//
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DISPOSITION
The judgment is modified to strike the one-year prior prison term
enhancements, and to reflect a total of 411 days credit against
defendant’s prison term. That credit consists of 329 days of actual pre-
sentence custody previously awarded, plus 82 days credit under section
4019. As modified, the judgment is affirmed.
The Clerk of the Superior Court is directed to prepare and
transmit to the Department of Corrections and Rehabilitation a
corrected abstract of judgment and minutes reflecting our disposition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY J.
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