People v. Dismuke CA5

Filed 3/27/25 P. v. Dismuke 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087359 Plaintiff and Respondent, (Super. Ct. No. 1006268) v.

MELVIN DISMUKE, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Carrie M. Stephens, Judge. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Snauffer, J. and DeSantos, J.

This appeal involves the interplay between Proposition 36, the Three Strikes Reform Act of 2012 (the Reform Act) (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)), and Penal Code1 section 1172.75, which invalidated prior prison term enhancements. Defendant Melvin Dismuke was originally sentenced in 2003. His sentence included three terms of 25 years to life under the original “Three Strikes” law, as well as a prior prison term enhancement under section 667.5, subdivision (b). In 2023, the trial court resentenced Dismuke under section 1172.75 by striking the enhancement, but it left intact the three strikes sentences. On appeal, Dismuke contends that his three indeterminate life terms are unauthorized under the Reform Act, and therefore the trial court erred by failing to reduce his sentence further. The People agree with Dismuke that the court was required to resentence him under the current provisions set forth in the Reform Act. However, we will follow other Courts of Appeal that have considered whether section 1172.75 authorizes a trial court to reconsider a three strikes sentence under the Reform Act and held it does not. Therefore, we affirm the trial court’s order declining to reduce Dismuke’s sentence beyond striking the now invalid prior prison term enhancement. BACKGROUND I. The underlying convictions A jury found Dismuke guilty of transporting cocaine (Health & Saf. Code, § 11352, subd. (a); count 1), possession of a firearm by a felon (§ 12021; count 2), felony evading a peace officer (§ Veh. Code, § 2800.2; count 3); and misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 4). The trial court separately found that Dismuke had suffered two prior convictions within the meaning of the Three Strikes law (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)) and had served a prior prison term (667.5, subdivision (b)).