People v. Kennedy CA3

Filed 12/23/20 P. v. Kennedy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C091631

Plaintiff and Respondent, (Super. Ct. No. 17CF03214)

v.

CLINTON JOSEPH KENNEDY,

Defendant and Appellant.

Defendant Clinton Joseph Kennedy was sentenced to prison for an aggregate term of five years, which included two consecutive one-year enhancements for having served prior prison terms. (Pen. Code, § 667.5, subd. (b).)1 After his judgment was final, but within 120 days of its imposition, he moved for recall and resentencing pursuant to

1 Undesignated statutory references are to the Penal Code.

1

section 1170, subdivision (d)(1). His motion was based on the passage of Senate Bill No. 136 (Senate Bill 136), which amended section 667.5 that, when later effective, invalidated some prior prison term enhancements like his. The trial court calendared his motion to be heard beyond 120 days after his judgment. Thereafter, the court denied his motion because it lacked jurisdiction to recall his sentence. On appeal, defendant claims that the court’s misunderstanding of its discretion to recall and resentence him deprived him of the benefits of amended section 667.5. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND Upon a report of a prowler, defendant was found and arrested for prowling and found in possession of a baggie of methamphetamine. Surveillance video revealed defendant prowling at three residences. He was charged with one count of possessing methamphetamine after having been convicted of an offense requiring registration per section 290, subdivision (c) (Health & Saf. Code, § 11377, subd. (a)—count 1) and three counts of prowling (§ 647, subd. (h)—counts 2-4). It was also alleged that he had served two prior prison terms. (§ 667.5, subd. (b).) On October 16, 2017, defendant pleaded no contest to count 1 and admitted both prior prison term enhancements. Pursuant to a plea agreement, defendant agreed to be sentenced to an aggregate term of two years consisting of the midterm of two years with two 1-year prior prison term enhancements to run concurrently. In exchange, the People moved to dismiss counts 2 through 4 with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, which the court granted. On January 24, 2018, the trial court suspended imposition of sentence, placing defendant on 36 months of formal probation with various terms and conditions. On June 28, 2019, the Butte County Probation Department filed a petition alleging that appellant violated probation by: (1) violating Vehicle Code section 23152, subdivision (f); (2) providing a urine sample that presumptively tested positive for cocaine and marijuana; and (3) providing a urine sample that presumptively tested