People v. Giron CA5

Filed 9/8/20 P. v. Giron 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079742 Plaintiff and Respondent, (Super. Ct. No. BF172092A) v.

JAIME GIRON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Thomas Owen, 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, Carlos A. Martinez and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Jaime Giron raises two contentions on appeal: (1) his four one-year prior prison term enhancements should be stricken pursuant to Penal Code section 667.5,1 subdivision (b), as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136); and (2) the trial court abused its discretion in refusing to dismiss his prior felony “strike” conviction for purposes of the “Three Strikes” law. The People concede the prior prison term enhancements should be stricken but argue that the court did not abuse its discretion in refusing to dismiss the prior strike conviction. We strike the prior prison term enhancements and affirm in all other respects. PROCEDURAL SUMMARY On May 18, 2018, the Kern County District Attorney charged defendant with transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and resisting a peace officer (§ 148, subd. (a)(1); count 3). As to counts 1 and 2, the information alleged defendant committed the offenses while released on bail (§ 12022.1), had suffered a prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and had served six prior prison terms (§ 667.5, subd. (b)). On July 2, 2019,2 the jury found defendant not guilty on count 1 but guilty of the lesser included offense of misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury found defendant guilty on counts 2 and 3. On the same date, in a bifurcated proceeding, the trial court found true the on-bail allegation, the prior strike allegation, and four of the six prior prison term allegations. The prior strike conviction was for a 2009 assault with a deadly weapon or with force likely to cause great bodily injury upon a peace officer (§ 245, subd. (c)). The prior prison terms were