People v. Reed CA5

Filed 9/8/20 P. v. Reed 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079549 Plaintiff and Respondent, (Super. Ct. No. F18907842) v.

JOHN REED, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant John Reed contends on appeal that the one-year prior prison term enhancement, imposed based on his prior felony conviction for attempted robbery, should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People concede the enhancement should be stricken. We accept the People’s concession and strike the prior prison term enhancement. In all other respects, we affirm. PROCEDURAL SUMMARY On March 8, 2019,2 the Fresno County District Attorney charged defendant with assault upon a custodial officer (§ 241.1; count 1), attempted battery by gassing (§§ 243.9, subd. (a), 664; count 2), and attempted battery on a non-confined person (§§ 243.15, 664; count 3). The information further alleged defendant had suffered four prior felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and had served one prior prison term (§ 667.5, subd. (b)). On May 20, the trial court dismissed count 3 on the district attorney’s motion. On May 21, the jury found defendant guilty on counts 1 and 2. On May 22, in a bifurcated proceeding, the jury found that defendant had suffered the four prior strike convictions and had served a prior prison term for attempted robbery. On June 13, the court struck three of the four prior strike conviction allegations. The court then sentenced defendant to seven years in prison as follows: on count 1, the upper term of three years, doubled to six years because of the remaining prior strike conviction, plus a one-year prior prison term enhancement; on count 2, one-half of the upper term of two years, doubled to four years because of the prior strike conviction, stayed pursuant to section 654.