People v. Shaw

Filed 10/26/20

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076124 Plaintiff and Respondent, v. (Super. Ct. No. SCD271055) SHAUN REGINALD SHAW, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Frederick L. Link, Judge. Affirmed in part and remanded for sentencing. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael Dodd Butera, Deputy Attorneys General, for Plaintiff and Respondent.

In a previous appeal (People v. Shaw (Jan. 7, 2019, D072841) [nonpub. opn.]), we affirmed defendant Shaun Reginald Shaw’s convictions for burglary, assault with a deadly weapon, and making a criminal threat, but remanded to allow the trial court to exercise its new authority pursuant to Senate Bill No. 1393 (Senate Bill 1393) (Stats. 2018, ch. 1013) to consider striking Shaw’s five-year enhancement for his serious prior felony conviction. (Pen. Code, 1 §§ 667, subd. (a)(1), 1385, subd. (b).) At resentencing, the trial court again imposed the enhancement. Shaw contests that decision and further argues that he is again entitled to resentencing, this time in light of Senate Bill No. 136 (Senate Bill 136) (Stats. 2019, ch. 590). As we explain, we find no abuse of discretion in the decision not to strike the five-year enhancement imposed under section 667, subdivision (a)(1). Nevertheless, resentencing is necessary to permit the trial court to strike the prison priors pursuant to recently enacted Senate Bill 136. FACTUAL AND PROCEDURAL BACKGROUND Because Shaw’s second appeal pertains only to sentencing issues, we describe the facts of the underlying case only briefly. Shaw was storing vehicles on William C.’s property without permission, and William had one of the vehicles towed. Enraged, Shaw broke into William’s home, swinging a hatchet, demanding his “ ‘mother fucking cars’ ” and threatening to “ ‘kill [his] ass.’ ” Shaw cut William’s lip with the hatchet and pursued William through the home, punching him and verbally threatening his life. A jury convicted Shaw of first degree residential burglary with a nonaccomplice present (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)), assault with a deadly weapon (§ 245, subd. (a)(1)), and making a criminal threat (§ 422). The court sentenced Shaw to a total term of 21 years and 4 months in state prison,