Opinion
D075742
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JEFFEREY LEE MOURNING, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD277656) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
BACKGROUND
The San Diego County District Attorney charged defendant with two counts of criminal vandalism and two counts of throwing a substance at vehicles with the intent to cause great bodily injury. (Pen. Code, § 594, subds. (a) & (b)(1); Veh. Code, § 23110, subd. (b).) It was alleged the rock-throwing incidents took place on the same day, on or about July 15, 2018, on the I-5 freeway in San Diego.
Pursuant to a stipulated sentence, defendant pled guilty to one count of unlawfully and maliciously damaging and destroying real personal property not his own, which was valued over $400; and to throwing a rock at a vehicle with the intent to do great bodily injury to the occupant of that vehicle. Defendant also admitted a prior burglary conviction which took place on November 4, 2013, and which added a one-year enhancement to his sentence. Defendant stipulated to a four-year prison sentence with execution of the sentence suspended pending a successful completion of probation. As a condition of probation, the court ordered defendant spend 365 days in a court-approved residential treatment program. He also waived conduct credits under Penal Code section 4019.
On April 5, 2019, defendant was sentenced in accordance with the stipulated sentence. He filed a timely amended notice of appeal.
DISCUSSION
In his opening brief, defendant urges us to strike the one-year prior enhancement for his 2013 burglary. He asserts that Senate Bill No. 136, which was signed by the Governor on October 8, 2019, should be applied retroactively to him. (See Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Senate Bill No. 136 eliminated one-year prison prior enhancements except in cases involving certain offenses not relevant here.
The People agree with defendant.
The sole issue left for us to decide is whether this court should strike the enhancement or remand the case to allow the trial court to reconsider defendant's sentence. The People urge remand because, in recommending concurrent sentences, the probation officer's report failed to take into account the fact that the crimes involved two separate cars traveling on the freeway. This reconsideration, argue the People, would allow the trial court to apply a consecutive rather than a concurrent sentence. The basis of this argument appears to be that the trial court was somehow mislead by the probation report, and it should be given the opportunity to apply a consecutive sentence. The People reference "changed circumstances" as a reason why so remand is necessary. We decline to do so.
The People stipulated to the sentence, which mandated that one of the charged rock-throwing incidents be dismissed. Despite the dismissal, we note that the written plea bargain permitted the court to consider the facts underlying the rock-throwing counts, even the count which was dismissed. It allowed the court to use all of the facts, including those underlying the dismissed counts, in deciding whether to impose a consecutive or concurrent sentence. We assume the trial court was aware that it had the power to do precisely what the People again request it do on a remand.
That is, the trial court has already declined to reject the plea negotiation by imposing consecutive sentences. We have been presented with no evidence in the record that would indicate the trial judge would react differently were this case to be remanded for a new sentence. The trial court read the probation report. We assume it knew two separate rock-throwing incidents were involved. Even if it could do so, we are not confident the trial court would now reject the stipulation if this case was remanded.
DISPOSITION
The one-year prison prior enhancement is ordered stricken. The judgement is amended to reflect a three-year custodial term. The trial court is directed to amend the abstract of judgment to reflect this change and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed as modified.
BENKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.