People v. Jenkins CA2/2 ( 2024 )

Filed 1/26/24 P. v. Jenkins CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B328802
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA101113)
v.
MICHAEL SCHNARD JENKINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Henry J. Hall, Judge. Reversed and remanded
with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Stephanie
C. Santoro, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Michael Jenkins appeals the denial of a request by the
Secretary of the California Department of Corrections and
Rehabilitation (CDCR) to recall his sentence and strike a one-
year prior prison enhancement pursuant to Penal Code1 section
1172.75. The People concede that the superior court erred in
refusing to recall the sentence and resentence appellant. We
accept the People’s concession and remand the matter to the
superior court for recall and resentencing in accordance with
section 1172.75.
PROCEDURAL BACKGROUND
In 1995, a jury convicted appellant of assault with intent to
commit rape (§ 220), first degree robbery (§ 211), and first degree
burglary (§ 459). The jury found a firearm enhancement
allegation true as to each offense. (§ 12022, subd. (b).) The jury
also found that appellant had two prior serious felony convictions
for robbery (§§ 667, subd. (a), 667.5, subd. (b)), as well as prior
convictions for assault with a deadly weapon and receiving stolen
property (§ 667.5, subd. (b)). The trial court found the two prior
robbery convictions were “strikes.” (§§ 667, 1170.12.) After
several resentencing hearings, the trial court sentenced appellant
to 37 years to life, consisting of 25 years to life (§ 667, subd. (b)–
(i)), plus two five-year terms for the prior serious felony
conviction enhancements (§ 667, subd. (a)), plus one year for the
weapon use (§ 12022, subd. (b)), and one additional year for one of
the prior prison terms2 (§ 667.5, subd. (b)).
1 Undesignated statutory references are to the Penal Code.
2 The court also imposed and stayed a one-year term for
one of the other prison priors. (§ 667.5, subd. (b).)
2
Following the enactment of Senate Bill No. 483, which
eliminated enhancements for prior prison terms (Stats. 2021,
ch. 728), the California Department of Corrections and
Rehabilitation (CDCR) requested that the sentencing court recall
appellant’s sentence, strike the one-year prior prison term
enhancement, and resentence appellant (§ 1172.75). The court
summarily denied the request on the ground that one of
appellant’s current convictions was for a sexually violent offense
(Welf. & Inst. Code, § 6600, subd. (b)), which precluded relief
under Penal Code section 1172.75, subdivision (a).
DISCUSSION
The Trial Court Erred in Denying the Request for
Recall of Appellant’s Sentence; the Matter Must
Be Remanded for Recall and Resentencing
Effective January 1, 2022, Penal Code section 1172.75
eliminated the one-year prior prison term enhancement under
section 667.5, subdivision (b) for all defendants sentenced before
January 1, 2020, whose sentences included the enhancement.
(Pen. Code, § 1172.75, subd. (a).) The sole exception was for “any
enhancement imposed for a prior conviction for a sexually violent
offense” under section 6600 of the Welfare and Institutions Code.
(Pen. Code, § 1172.75, subd. (a).) The legislation requires the
CDCR to identify all persons in CDCR custody currently serving
a sentence that includes the one-year enhancement and notify
the sentencing court to have the sentence recalled and the
defendant resentenced. (§ 1172.75, subds. (b) & (c).)
In this case, one of appellant’s current offenses was for a
sexually violent offense⎯assault with intent to commit rape⎯but
none of his prior prison terms was for a conviction of a sexually
violent offense as defined by Welfare and Institutions Code
3
section 6600, subdivision (b). Accordingly, the prior prison term
imposed as a part of appellant’s sentence pursuant to Penal Code
section 667.5, subdivision (b) is legally invalid. (Pen. Code,
§ 1172.75, subd. (a).)
The trial court erred in refusing to recall appellant’s
sentence and resentence him in accordance with section 1172.75,
subdivisions (b) through (d).
DISPOSITION
The order denying the California Department of
Corrections and Rehabilitation Secretary’s request to recall
appellant’s September 3, 1998 sentence and to resentence him is
reversed. The matter is remanded to the superior court for recall
of appellant’s sentence and to resentence in accordance with
Penal Code section 1172.75.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
4