People v. Bias CA5

Filed 12/9/20 P. v. Bias 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079716 Plaintiff and Respondent, (Super. Ct. No. VCF349995) v.

DAVID LAVERN BIAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. Siena Kautz, 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, Julie A. Hokans and Timothy L. O’Hair, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P.J., Smith, J. and Snauffer, J.

Defendant David Lavern Bias was convicted of residential burglary, unlawful taking or driving of a vehicle, second degree burglary, and theft of a firearm. He contends on appeal that (1) the trial court erred in failing to stay his second degree burglary and unlawful taking or driving of a vehicle convictions pursuant to Penal Code section 654,1 and (2) his two one-year prior prison term enhancements should be stricken pursuant to section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019– 2020 Reg. Sess.) (Senate Bill 136). The People agree. We vacate the sentence, remand for resentencing with directions, and affirm in all other respects. PROCEDURAL SUMMARY On November 21, 2017, the Tulare County District Attorney filed an information charging defendant with first degree residential burglary (§ 459; count 1), grand theft of a firearm (§ 487, subd. (d)(2); count 2), second degree burglary (§ 459; count 3), and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 4). As to all counts, the information alleged defendant had served five prior prison terms (§ 667.5, subd. (b)). On April 30, 2019, the jury found defendant guilty on all counts. On the same day, the parties entered into an agreement whereby defendant admitted having served two prior prison terms in exchange for dismissal of the other three prior prison term enhancements. The two admitted prior prison terms were served for convictions of unlawful driving or taking of a vehicle (Veh. Code, § 10851) and identity theft (§ 530.5, subd. (a)). On July 15, 2019, the trial court sentenced defendant to seven years eight months in prison as follows: on count 1, four years (the middle term) plus two one-year prior prison term enhancements; on count 2, three years (the aggravated term) concurrent to the term on count 1, stayed pursuant to section 654; on count 3, eight months (one-third the