People v. Holliday CA2/4 ( 2021 )

Filed 3/12/21 P. v. Holliday 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B301414
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA099163)
v.
ERIC HOLLIDAY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Laura L. Laesecke, Judge. Affirmed as Modified.
William G. Holzer, 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, Michael R. Johnsen and David W. Williams, Deputy Attorneys
General, for Plaintiff and Respondent.
This is an appeal following resentencing on remand from this
court. After defendant Eric Holliday was resentenced, the Legislature
enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (S.B. 136), which
amended Penal Code1 section 667.5, subdivision (b), governing prior
prison term sentence enhancements. Defendant appeals, arguing that
S.B. 136 requires that two one-year prior prison term enhancements
that were included in his sentence be stricken. He also asks that the
abstract of judgment be modified to indicate that a gang enhancement
was stayed. The Attorney General concurs, as do we.
BACKGROUND
We take our background facts from our prior opinion, People v.
Holliday (Jan. 25, 2019, B284342) [nonpub. opn.] (Holliday I). The facts
of the crimes for which defendant was convicted are not relevant to this
appeal. Suffice to say that defendant was convicted of one count of
attempted first degree murder (§§ 664/187, subd. (a)), three counts of
assault with a firearm (§ 245, subd. (a)(2)), and one count of possession
of a firearm by a felon (§ 29800, subd. (a)(1)). The jury found gang
allegations (§ 186.22, subd. (b)(1)(C)) and firearm allegations
(§§ 12022.5, 12022.53, subds. (b), (c)) as to certain counts to be true, and
the trial court found that defendant had suffered prior felony
convictions (§ 667, subd. (a)(1)) and served prior prison terms (§ 667.5,
subd. (b), hereafter § 667.5(b)). The court sentenced him to an
1 Further undesignated statutory references are to the Penal Code.
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indeterminate term of 15 years to life in prison plus a determinate term
of 44 years and four months. (Holliday I, supra, B284342, at p. 2.)
The initial sentence was computed as follows. On the attempted
murder count, the court imposed an indeterminate term of 15 years to
life, plus determinate terms of 20 years for a firearm use allegation
(§ 12022.53, subd. (c)), two years for an out-on-bail allegation (§
12022.1), and two one-year section 667.5(b) enhancements. On the first
assault with a firearm (AWF) count, the court imposed the high term of
four years, plus 10 years for a firearm allegation (§ 12022.5, subd. (a)).
On the second AWF count, the court imposed one-third the midterm
(i.e., one year), plus one-third of the firearm allegation (i.e., one year
and four months), plus two years for an out-on-bail allegation, plus two
one-year section 667.5(b) enhancements. On the third AWF count, the
court imposed and stayed the high term of four years, plus 10 years for
the gang allegation, plus 10 years for the firearm allegation. Finally,
the court imposed and stayed the midterm of two years plus three years
for the gang enhancement on the possession of a firearm by a felon
count. (Holliday I, supra, B284342, at pp. 15-16.) The two section
667.5(b) enhancements imposed with the attempted murder count and
the second AWF count were based upon felony convictions for grand
theft and for assault with a deadly weapon. (Holliday I, supra,
B284342, at p. 25.)
Two things occurred while defendant’s appeal from the original
sentence was pending. First, defendant successfully petitioned under
Proposition 47, the Safe Neighborhood and Schools Act, to have his
grand theft conviction resentenced as a misdemeanor, thus making it
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ineligible for a section 667.5(b) enhancement under the version of the
statute then in effect. (Holliday I, supra, B284342, at pp. 25-26.)
Second, the Legislature enacted Senate Bill No. 620 (2017-2018 Reg.
Sess.), which deleted the prohibition on striking firearm allegations and
allowed the trial court to exercise its discretion whether to strike or
dismiss such enhancements.
In Holliday I, we affirmed the convictions, but struck the prior
prison term enhancements related to the prior grand theft conviction.
We also remanded the matter to allow the trial court to conduct further
proceedings as to the out-on-bail enhancements (the court had not made
the necessary findings to support the enhancements) and to exercise its
discretion regarding whether to strike the firearm enhancements.
(Holliday I, supra, B284342, at p. 30.)
On remand, defendant waived his rights and admitted the out-on-
bail enhancement allegations, and the trial court found those
allegations to be true. The court then declined defendant’s request to
strike the firearm enhancements. After striking the prior prison term
enhancements related to the grand theft prior conviction, the court
imposed a total determinate term of 42 years plus four months, plus an
indeterminate term of 15 years to life. Defendant filed a notice of
appeal from the judgment on September 19, 2019.
DISCUSSION
A. Section 667.5(b) Enhancements
At the time of defendant’s original sentencing and of his
resentencing, section 667.5(b) provided for a one-year sentence
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enhancement for each prior prison term served by the defendant for any
felony except when the defendant remained free of both the commission
of an offense that results in a felony conviction and of prison custody for
a period of five years. (Former § 667.5(b); Stats. 2018, ch. 423, § 65;
Stats. 2014, ch. 442, § 10.) Effective January 1, 2020, S.B. 136 amended
section 667.5(b) to limit its application to prior prison terms served for a
sexually violent offense. (§ 667.5(b); Stats. 2019, ch. 590, § 1.)
Defendant contends that this amendment applies retroactively
and, since the two section 667.5(b) enhancements included in his
resentencing were not for a prison term served for a sexually violent
offense, he is entitled to have those two enhancements stricken from his
sentence. He also contends that, because the trial court imposed the
maximum possible sentence at the resentencing hearing, there is no
need to remand the matter; instead this court should simply strike the
two enhancements. The Attorney General agrees with both
contentions.
We concur. Because the judgment on defendant’s resentencing is
not yet final, the amendment to section 667.5(b) applies here. (People v.
Lopez (2019) 42 Cal.App.5th 337, 340-342; see also In re Estrada (1965)
63 Cal.2d 740, 744-746; People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 307-309 [discussing Estrada].) And, because the trial court
exercised its sentencing discretion to impose the maximum possible
sentence, there is no need to remand for resentencing. (People v.
Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
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B. Abstract of Judgment
As noted, on the third AWF count (count 7), the trial court
imposed and stayed a high term sentence, plus 10 years for the firearm
enhancement, plus 10 years for the gang enhancement. (Holliday I,
supra, B284342, p. 16.) The abstract of judgment generated following
his resentencing, however, fails to indicate that the gang enhancement
for count 7 was imposed and stayed. Therefore, defendant requests that
the abstract of judgment be corrected.
The Attorney General does not object to this correction, but notes
that the gang enhancement allegation for the attempted murder count
(count 1) also was found to be true (although the trial court stayed that
enhancement) and that true finding and staying of the enhancement is
not indicated on the abstract of judgment. Therefore, the Attorney
General asks that if this court orders the correction of the abstract of
judgment with regard to the stayed gang enhancement for count 7, it
also order the correction with regard to count 1. We agree that both
corrections should be made.
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DISPOSITION
The sentence is modified to strike the section 667.5(b) one-year
prior prison term enhancements imposed with respect to count 1 and
count 6. The trial court is directed to prepare and forward to the
Department of Corrections and Rehabilitation amended abstracts of
judgment that reflect: (1) the striking of the section 667.5(b)
enhancements in count 1 and count 6; and (2) that a gang enhancement
under section 186.22 was imposed and stayed with respect to count 1
and count 7. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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