People v. Ensminger CA5

Filed 11/18/20 P. v. Ensminger CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079752 Plaintiff and Respondent, (Super. Ct. No. CR-18-006010) v.

BILLY JOE ENSMINGER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Peña, J. and Meehan, J.

Defendant Billy Joe Ensminger contends on appeal that his one-year prior prison term enhancement should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People concede the enhancement should be stricken. We strike the prior prison term enhancement, remand for resentencing, and affirm in all other respects. PROCEDURAL SUMMARY On December 6, 2018,2 the Stanislaus County District Attorney charged defendant in an amended information with attempted carjacking (§§ 215, subd. (a), 664; count 1), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), and possession of ammunition by a felon (§ 30305, subd. (a)(1); count 3). As to count 1, the amended information alleged defendant personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). On December 20, the jury found defendant guilty on all counts and found true the firearm allegation. On January 10, 2019, in a bifurcated hearing, the trial court found true the prior serious felony conviction allegations and prior prison term allegation. Defendant’s prior prison term was served for two 2010 convictions of unlawful taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)). On July 31, 2019, the trial court imposed a sentence of 16 years in prison as follows: on count 1, five years (the middle term of two and a half years doubled due to defendant’s prior strike conviction), plus 10 years for the firearm enhancement, plus one