People v. Perry CA2/6

Filed 10/19/20 P. v. Perry CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B302927 (Super. Ct. No. 2018019411) Plaintiff and Respondent, (Ventura County) v. NANUEL PERRY, SR., Defendant and Appellant.

Nanuel Perry, Sr. appeals his 28-month felony-jail sentence (Pen. Code, § 1170, subd. (h)(5))1, imposed after he entered into a negotiated plea to commercial burglary (§ 459) and admitted two prior prison term enhancements (§ 667.5, subd. (b)). Appellant contends, and the Attorney General agrees, that the prior prison term enhancements have been invalidated by Senate Bill No. 136 (S.B. 136; Stats. 2019, ch. 590, § 1) and must be stricken. (People v. Matthews (2020) 47 Cal.App.5th 857, 866 (Matthews).) We strike the prior prison term enhancements and remand for resentencing.

1 All further statutory references are to the Penal Code.

Procedural History Appellant was the “wheelman” in the nighttime burglary of a meat market that resulted in a high speed police chase. Inside the vehicle were bolt cutters, a money counter, a license plate, a hairnet, a screwdriver, and $2,400 cash. Appellant was charged with two counts of commercial burglary (counts 1-2; § 459) and misdemeanor possession of burglary tools (count 3; § 466) with two prior prison term enhancements (§ 667.5, subd. (b)). On August 21, 2019, appellant entered into a written plea agreement and pled guilty to count 1 for commercial burglary and admitted the prior prison term enhancements. The trial court sentenced appellant to the low term of 16 months on count 2 (§ 459), plus 12 months on a prior prison term enhancement (§ 667.5, subd. (b)). Counts 1 and 3 were dismissed. (§ 1385.) After appellant was sentenced, S.B. 136 was enacted to limit section 667.5, subdivision (b) to prior prison terms resulting from convictions for sexually violent offenses. (Legis. Counsel’s Dig., Sen. Bill No. 136 (2019–2020 Reg. Sess.) ch. 590, § 1.) The Attorney General agrees the section 667.5, subdivision (b) enhancements must be stricken because appellant’s judgment is not final. (See Matthews, supra, 47 Cal.App.5th at p. 862; People v. Petri (2020) 45 Cal.App.5th 82, 94 [S.B. 136 applies retroactively to defendants whose judgments are not yet final as of January 1, 2020]; People v. Jennings (2019) 42 Cal.App.5th 664, 681–682 [same].)