People v. Jansen CA3

Filed 10/14/20 P. v. Jansen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE, C090705

Plaintiff and Respondent, (Super. Ct. No. CRF190852)

v.

MICHAEL EDWARD JANSEN,

Defendant and Appellant.

In August 2019 a jury found defendant Michael Edward Jansen guilty of burglarizing a motor vehicle (Pen. Code, § 459)1 and petty theft (§ 484, subd. (a)). In separate proceedings, the trial court found true allegations that defendant served four prior prison terms (former § 667.5, subd. (b)), and was previously convicted of a strike offense.

1 Undesignated statutory references are to the Penal Code.

1

In October 2019 the trial court sentenced defendant to an aggregate term of 10 years in state prison, including the upper term of three years for burglarizing a motor vehicle, doubled pursuant to the three strikes law, and four one-year consecutive terms for the prior prison term enhancements.2 The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations fee (§ 1465.8, subd. (a)), and a $30 conviction assessment (Gov. Code, § 70373). Defendant now contends, and the Attorney General concedes, we should strike defendant’s prior prison term enhancements based on recent legislation. We agree and will modify the judgment accordingly. Defendant also contends the matter should be remanded to allow the trial court to consider his ability to pay fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157. We conclude defendant has forfeited this claim and will affirm the judgment as modified. DISCUSSION3 A. Senate Bill No. 136 In October 2019 the Governor signed Senate Bill No. 136 (2019-2020 Reg. Sess.), which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill No. 136 narrowed eligibility for the one-year prior prison term enhancement to only those who have served a prior prison sentence for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) The amendment applies “retroactively to all defendants whose judgments are not yet final as of that date.” (People v. Petri (2020) 45 Cal.App.5th 82, 94.)