People v. Shaw CA2/6

Filed 11/3/20 P. v. Shaw 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B303360 (Super. Ct. No. 2018029461) Plaintiff and Respondent, (Ventura County)

v.

JASON MACKENZIE SHAW,

Defendant and Appellant.

Appellant Jason Mackenzie Shaw used another person’s identification to purchase a vehicle at a dealership. Pursuant to a plea agreement, appellant pled guilty to unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)) and possession of personal identification information of another (Pen. Code, § 530.5, subd.

(c)(2)). Appellant also admitted two prior felony prison term allegations. (§ 667.5, subd. (b).)1 Appellant’s negotiated 28-month jail sentence consists of the low term of 16 months on the Vehicle Code section 10851 violation, a concurrent 16-month sentence on the identity theft conviction (§ 530.5, subd. (c)(2)), plus a consecutive one-year prior felony prison term enhancement under section 667.5(b). The court struck the second enhancement and dismissed a receiving stolen property count (§496d, subd. (a).) Effective January 1, 2020, Senate Bill No. 136 (S.B. 136) amended section 667.5(b) to apply only when the prior prison term was served for a sexually violent offense. (Ibid.; see SB 136 (2019-2020 Reg. Sess.) § 1.) The new statute applies to nonfinal judgments on appeal. (People v. Winn (2020) 44 Cal.App.5th 859, 872-873.) Appellant contends, and the Attorney General concedes, the one-year enhancement must be stricken pursuant to S.B. 136 and section 667.5(b). We accept this concession and order the trial court to strike the enhancement. DISCUSSION Although the parties agree the enhancement must be stricken, they disagree as to whether a remand for resentencing is required. The People claim the trial court should be allowed to reconsider its sentencing options following the striking of the enhancement. (See People v. Hill (1986) 185 Cal.App.3d 831, 834.) We agree with the People. Relying upon People v. Matthews (2020) 47 Cal.App.5th 857 (Matthews), appellant argues that where, as here, the parties