People v. Barker CA1/5

Filed 12/24/24 P. v. Barker CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167946 v. BOBBY RAY BARKER, (San Mateo County Super. Ct. No. SC044291A) Defendant and Appellant.

Appellant Bobby Ray Barker (appellant) appeals from denial of resentencing under Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483), which declared invalid prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b)1 for nonsexually violent offenses. The trial court denied resentencing because appellant had already completed his 16-year sentence on the judgment that included the prior prison term enhancement; appellant was still in prison due only to offenses he committed while in custody (as well as a previous robbery) that added over 15 years to his confinement time. We affirm.2

1 All undesignated statutory references are to the Penal Code.

2 Appellant filed a petition for writ of habeas corpus (case No.

A169984), also seeking relief based on Senate Bill 483. We summarily deny the petition in a separate order.

1

BACKGROUND In January 1999, the San Mateo County District Attorney filed an information charging appellant with robbery (§ 212.5, subd. (c)); two counts of assault with a firearm (§ 245, subd. (a)(2)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)).3 Among other things, the information also alleged a prior prison term enhancement under section 667.5, subdivision (b). In August 1999, a jury found appellant guilty of robbery and not guilty on the remaining charges. The trial court found true the prior prison term allegation, among others. In October, the court sentenced appellant to 16 years in prison, including one year for the prior prison term enhancement. While in custody, appellant committed five additional offenses and was convicted for a 1998 robbery. In particular, in 2001, he was convicted on two counts of being a prisoner in possession of a weapon, which added eight years to his sentence. In 2007, he was convicted of indecent exposure, which added four years to his sentence. In 2011, he was convicted for a 1998 robbery, which added two years to his sentence. And, in 2014 and 2020, he was again convicted of indecent exposure, which added a total of 16 months to his sentence. The record contains abstracts of judgment corresponding to these additional convictions and adding 15 years, four months to his sentence. Following the passage of Senate Bill 483, the California Department of Corrections and Rehabilitation (CDCR) identified appellant as an individual possibly eligible for resentencing. Respondent opposed resentencing on the ground that appellant is ineligible for relief because he is no longer serving the 16-year sentence in the 1999 judgment including the prior prison term enhancement. Appellant responded that, although he was “technically not