People v. Ruiz CA5

Filed 10/7/20 P. v. Ruiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079408 Plaintiff and Respondent, (Super. Ct. No. MCR057023) v.

JOSE ELIESTER RUIZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Lindsay Sweet, 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, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Jose Eliester Ruiz contends on appeal that his prison term enhancement 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 strike the prior prison term enhancement and affirm in all other respects. PROCEDURAL SUMMARY On June 13, 2018, the Madera County District Attorney charged defendant with robbery (§ 211; count 1). The amended information further alleged defendant had suffered two prior felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as prior serious felony convictions (§ 667, subd. (a)).2 On April 9, 2019,3 the jury found defendant guilty on count 1. On April 29, the trial court found true the two prior strike allegations and one prior prison term allegation. On May 28, the trial court sentenced defendant to 25 years to life on count 1, plus a one-year prior prison term enhancement. On May 31, defendant filed a notice of appeal. FACTUAL SUMMARY On the evening of January 27, 2017, Veronica Russell shopped at a supermarket in Madera with her infant daughter and her 12-year-old stepdaughter, Daisy. After they exited the supermarket, defendant approached them and demanded that Russell give him

1 All further statutory references are to the Penal Code unless otherwise stated. 2 The original information alleged defendant had served a prior prison term for two prior robbery convictions. The amended information alleged that the same prior robbery convictions were serious felonies for purposes of section 667, subdivision (a), but omitted the section 667.5, subdivision (b) prior prison term enhancement allegation. 3 All further dates refer to the year 2019 unless otherwise stated.