People v. Bray CA2/3

Filed 10/21/20 P. v. Bray CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B301890

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA084553) v.

ERNEST BRAY, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard H. Kirschner, Judge. Affirmed as modified. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. ——————————

Ernest Bray, Jr., contends that he is entitled to resentencing under newly enacted Senate Bill No. 136, which amended Penal Code1 section 667.5, subdivision (b). As we now explain, we agree. In 2017, a jury found Bray guilty of second degree robbery (§ 211; count 1) and of assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The jury also found that during the robbery Bray used a knife (§ 12022, subd. (b)(1)). The trial court then found that Bray had three prior strikes within the meaning of the “Three Strikes” law, two prior serious felonies (§ 667 subd. (a)(1)), and five prison priors (§ 667.5, subd. (b)). The trial court granted Bray’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and struck punishment but not the true findings for Bray’s prior strikes. The trial court also struck the punishment for the weapon allegation and struck the punishment but not the true findings for the prison priors. The trial court sentenced Bray to two years on count 1, one year on count 2, and two 5-year terms. Bray’s total sentence therefore was 13 years. Bray appealed. We affirmed the judgment. (People v. Bray (Oct. 31, 2018, B283962) [nonpub. opn.].) Bray petitioned for review and raised newly enacted Senate Bill No. 1393 ((2017– 2018 Reg. Sess.), Stats. 2018, ch. 1013, §§ 1–2). The Supreme Court granted the petition and transferred the matter to this court with the direction to vacate our decision and to reconsider the cause in light of that new law. In accordance with that order, we vacated our opinion and remanded for resentencing. (People v. Bray (Mar. 28, 2019, B283962) [nonpub. opn.].)