People v. Barnette CA4/1

Filed 11/5/24 P. v. Barnette CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083350

Plaintiff and Respondent,

v. (Super. Ct. No. SCD148088) MICHAEL DERRICK BARNETTE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Reversed and remanded with instructions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION Michael Derrick Barnette appeals the denial of his motion for

resentencing under Penal Code,1 section 1172.75. Because the trial court’s ruling was based on an erroneous interpretation of section 1172.75, we reverse and remand for full resentencing. In 2000, Barnette pleaded guilty to kidnapping (§ 207, subd. (a); count 1), carjacking (§ 215, subd. (a); count 2), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); count 3), battery causing serious bodily injury (§ 243, subd. (d); count 4); and three counts of attempted carjacking (§§ 664, 215, subd. (a); counts 5–7). He admitted an enhancement for personal infliction of great bodily injury upon a person aged 70 or older (§ 12022.7, subd. (c); count 3), as well as two serious felony prior enhancements (§ 667.5, subd. (a)(1)), two prison prior enhancements (§ 667.5, subd. (b)), and two “strike” priors (§§ 667, subds. (b)–(i), 1170.12, 668). The court sentenced Barnette to prison for 35 years to life based on 25 years to life for count 1 with two consecutive five-year enhancements for each of the serious felony priors. The court imposed concurrent sentences for counts 2, 3, 5, and 7. It imposed but stayed sentences on counts 4 and 6 as well as the two prison prior enhancements. Effective January 1, 2022, section 1172.75 was added to the Penal Code by virtue of the passage of Senate Bill No. 483 (2021–2022 Reg. Sess.). (Stats. 2021, ch. 728, § 3.) With one exception not applicable here, section 1172.75 provides that prison prior enhancements “imposed prior to January 1, 2020” pursuant to section 667.5, subdivision (b) are “legally invalid.” (§ 1172.75, subd. (a).) It directs the Department of Corrections