People v. Her CA3

Filed 1/4/21 P. v. Her CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089693

Plaintiff and Respondent, (Super. Ct. No. 19CF02424)

v.

TURBO CHUNG HER,

Defendant and Appellant.

A trial court sentenced defendant Turbo Chung Her to five years in state prison, including one year for each of two prior prison term enhancements. Defendant contends the prior prison term enhancements should be vacated based on the retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.; hereafter Senate Bill 136), which the People concede. We shall modify the judgment to strike the enhancements, and affirm the judgment as modified.

1

FACTUAL AND PROCEDURAL BACKGROUND Police found defendant in possession of 0.2 grams of methamphetamine. Defendant pleaded no contest to one count of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) Defendant admitted two prior prison terms under section 667.5, former subdivision (b). The prior prison terms were for a 2013 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and a 2014 conviction for battery (Pen. Code, § 243, subd. (d)).1 The trial court sentenced defendant to five years in state prison, including one year for each of the two prior prison term enhancements. DISCUSSION Defendant contends, and the People agree, that recently enacted Senate Bill 136, which limits the prior offenses that qualify for a prior prison term enhancement under section 667.5, subdivision (b), applies retroactively to his case. We agree. On October 8, 2019, the Governor signed Senate Bill 136, which amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). Senate Bill 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense. The amended provision states, in relevant part: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of