People v. Perozzi CA3

Filed 9/30/20 P. v. Perozzi CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C090821

Plaintiff and Respondent, (Super. Ct. Nos. 17CR003500, 18CR000731) v.

ROBERT LLOYD PEROZZI,

Defendant and Appellant.

Defendant Robert Lloyd Perozzi pled guilty to first degree residential burglary and admitted two prior prison terms. On appeal, he contends the prior prison term enhancements must be vacated based on the retroactive application of Senate Bill No. 136 (Senate Bill 136). We modify the judgment to strike defendant’s prior prison term enhancements. We will otherwise affirm. I. BACKGROUND Due to the limited nature of the claim on appeal, we need not recite the facts underlying the offenses. In two cases, defendant was charged with first degree residential

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burglary (Pen. Code, § 459),1 two counts of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and two counts of receiving a stolen motor vehicle (§ 496d, subd. (a)). It was further alleged that he committed three of the offenses while on bail (§ 12022.1) and served four prison terms under section 667.5, subdivision (b). Defendant subsequently pled guilty to first degree residential burglary and admitted two of the prior prison terms. The remaining counts and enhancements were dismissed on motion of the district attorney. The court sentenced defendant to the stipulated sentence of the upper term of six years for the burglary, plus two years consecutive for the two prison prior enhancements pursuant to section 667.5, subdivision (b). II. DISCUSSION Defendant claims his prior prison term enhancements must be vacated based on the retroactive application of Senate Bill 136. The People agree. On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense, as defined. The amended provision states in pertinent part: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison