People v. Harmon CA2/1

Filed 12/9/24 P. v. Harmon CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B335051

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA030176) v.

DERICK DARNELL HARMON,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Ricardo R. Ocampo and Teresa P. Magno, Judges. Appeal treated as petition for writ of habeas corpus; petition granted. 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, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________

In 1994, Derick Darnell Harmon was convicted of robbery. His sentence included, among other enhancements, three one- year prior prison term enhancements under Penal Code1 section 667.5, subdivision (b). The Legislature subsequently deemed all section 667.5, subdivision (b), enhancements to be invalid unless imposed for a sexually violent offense. It also made persons in the custody of the California Department of Corrections and Rehabilitation (CDCR) serving time on a judgment including the now-invalid enhancement potentially eligible for resentencing under former section 1171.1, later renumbered section 1172.75. In July 2022, after receiving notice from CDCR that Harmon was potentially eligible for resentencing, the trial court struck Harmon’s three section 667.5, subdivision (b), enhancements but did not hold a full resentencing hearing as required by section 1172.75, nor did it notify Harmon that it was conducting any type of hearing. The following year, in September 2023, Harmon filed a motion, seeking a resentencing hearing under section 1172.75. In December 2023, the trial court denied the motion for lack of jurisdiction and Harmon appealed. Harmon contends, the Attorney General concedes, and we agree that the trial court erred in not conducting a resentencing hearing under the procedures set forth in section 1172.75, subdivision (d). At Harmon’s request, and with no objection from the Attorney General, we exercise our discretion to treat Harmon’s appeal as a petition for writ of habeas corpus, as Harmon did not timely appeal from the July 2022 order or amended judgment and there is no indication the December 2023