People v. Quiroz CA2/4 ( 2020 )

Filed 11/4/20 P. v. Quiroz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B302350
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA150964)
v.
JAVIER QUIROZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed as
modified.
Adrian Dresel-Velasquez, 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, Marc A. Kohm and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant Javier Quiroz, Jr. appeals from the sentence
following his conviction for driving a vehicle without consent. He
contends that a one-year prior prison term enhancement imposed
pursuant to Penal Code section 667.5, subdivision (b)1 must be
stricken in light of the passage of Senate Bill No. 136 (2019–2020
Reg. Sess.) (S.B. 136). He also requests correction of errors in the
abstract of judgment. Respondent agrees with both contentions.
Therefore, we strike the one-year enhancement and modify the
judgment accordingly. We further direct the trial court to correct
the abstract of judgment. We otherwise affirm the judgment.
PROCEDURAL HISTORY2
On July 9, 2019, the Los Angeles County District Attorney
(the People) filed an information charging defendant with one
felony count of driving or taking a vehicle without consent (Veh.
Code, § 10851, subd. (a); count one) and one felony count of
receiving a stolen vehicle (§ 496d; count two). The information
further alleged defendant suffered two prior serious or violent
felony convictions (§§ 667, subds. (b)-(j), 1170.12), served two
prior prison terms (§ 667.5, subd. (b)), and suffered a prior
conviction for grand theft auto (§ 666.5). Prior to trial, the court
granted the People’s motion to dismiss count two.
On September 10, 2019, a jury convicted defendant of count
one. Following a bifurcated court trial on the prior conviction
allegations, the court found one of the prior strike allegations
true. The court further found true the prior grand theft auto
1All further statutory references are to the Penal Code
unless otherwise indicated.
2We omit the factual background as it is irrelevant to the
issues presented on appeal.
2
conviction under section 666.5 and the two prior prison terms
under section 667.5.
The court sentenced defendant to a total of seven years in
state prison, consisting of the mid-term of three years on count
one, doubled pursuant to sections 1170.12, subdivisions (a)
through (d) and 667, subdivisions (b) through (i), plus one year
for one of the prior prison terms pursuant to section 667.5,
subdivision (b). The court struck the second prior prison term
allegation. The court also stayed the imposition of all fines and
fees, finding that defendant did not have the ability to pay them.
Defendant timely appealed.
DISCUSSION
I. One-Year Enhancement
Effective January 1, 2020, S.B. 136 amended section 667.5,
subdivision (b), such that the one-year enhancement applies only
if a defendant’s prior prison term was served for a sexually
violent offense. (People v. Winn (2020) 44 Cal. App. 5th 859, 872;
People v. Jennings (2019) 42 Cal. App. 5th 664, 681.) Because
defendant did not serve either of his prior prison terms for a
sexually violent offense, and because his conviction is not final,
defendant contends the one-year enhancement must be stricken
from his sentence. (See People v. Winn, supra, 44 Cal.App.5th at
p. 872 [S.B. 136 applies to non-final judgments]; People v. Brown
(2012) 54 Cal. 4th 314, 323 [“When the Legislature has amended a
statute to reduce the punishment for a particular criminal
offense, we will assume, absent evidence to the contrary, that the
Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.”].)
Respondent agrees, as do we, that S.B. 136 applies to this
3
case. The parties further agree that remand for resentencing is
unnecessary, as it would be impossible for the trial court to
impose a seven-year term upon remand, nor could the court
sentence defendant to any term greater than the seven years
defendant originally received. We therefore strike the one-year
prior prison term imposed under section 667.5, subdivision (b)
and modify the sentence to reflect a total term of six years.
II. Abstract of Judgment
Defendant also contends that several errors in the abstract
of judgment require correction. Respondent agrees. We therefore
direct the trial court to amend the abstract of judgment to
accurately reflect the following: (1) the imposition of the three-
year mid-term sentence on count one pursuant to section 666.5;
and (2) the court’s stay of the imposition of the restitution fine,
court operations assessment, and conviction assessment.
DISPOSITION
The one-year prior prison term imposed under section
667.5, subdivision (b) is stricken, and the sentence is modified to
a term of six years in state prison. The trial court is directed to
amend the abstract of judgment to reflect this modification and to
correct the errors discussed herein. The trial court shall send an
amended abstract of judgment to the Department of Corrections.
The judgment is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
4
MANELLA, P. J. CURREY, J
5