People v. Brown CA5

Filed 8/1/24 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086107 Plaintiff and Respondent, (Super. Ct. No. SC077348A) v.

FREDERICK BROWN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Snauffer, J.

INTRODUCTION Defendant Frederick Brown appeals from a judgment following resentencing pursuant to Penal Code1 section 1172.75. He argues that subdivision (c)(2)(C) of section 1385 required the trial court to dismiss a prior serious felony enhancement (§ 667, subd. (a)) because defendant’s sentence exceeded a term of 20 years. We reject the argument and affirm. PROCEDURAL BACKGROUND2 In 1999, a jury convicted defendant of rape by force (§ 261, subd. (a)(2); count 1) and incest (§ 285; count 2). In bifurcated proceedings, the trial court determined defendant had suffered two prior serious felony convictions (§ 667, subd. (a)), which also constituted strikes (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)), and had served five prior prison terms, two of which were related to the prior serious felony convictions (§ 667.5, former subd. (b)). The trial court sentenced defendant to an aggregate term of 38 years to life, which consisted of a term of 25 years to life on count 1, consecutive five- year terms on each of the two prior serious felony enhancements, and consecutive one- year terms on each of three prior prison term enhancements.3 Sentence on count 2 was imposed and stayed pursuant to section 654. Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5, subdivision (b) to provide that a prior prison term enhancement may be imposed only if the prior prison term was imposed for certain qualifying sexually violent

1 Undesignated statutory references are to the Penal Code.