People v. Owney CA5

Filed 1/13/21 P. v. Owney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079799 Plaintiff and Respondent, (Super. Ct. No. BF172619A) v.

DARRELL MONTE OWNEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshw, Judge. Andrea Keith, 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, Barton E. Bowers, Jamie A. Scheidegger and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Darrell Monte Owney stands convicted of robbery. On appeal, he contends he was eligible for the mental health diversion program and therefore (1) the trial court abused its discretion in denying his request for a new attorney who would assist him to that end, and (2) defense counsel was ineffective in failing to seek mental health diversion. Additionally, defendant contends 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 agree with all three contentions. We conditionally reverse the judgment, direct the trial court to strike the prior prison term enhancement, and remand to the trial court for further proceedings. PROCEDURAL SUMMARY On July 10, 2018, the Kern County District Attorney filed an information charging defendant with robbery (§§ 211, 212.5, subd. (c); count 1), and petty theft with a prior theft conviction (§ 666, subd. (a); count 2). The information further alleged that defendant had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), which also qualified as a prior serious felony conviction (§ 667, subd. (a)), and had served seven prior prison terms (§ 667.5, subd. (b)). On July 12, 2019, the jury found defendant guilty on count 1. The jury reached no verdict on count 2, and the trial court later dismissed that count. On July 16, 2019, in a bifurcated hearing, the trial court found true that defendant had suffered a prior strike conviction and a prior serious felony conviction and had served five prior prison terms. The prior prison terms found true were served for convictions of robbery (§ 212.5); unauthorized acquisition, possession, or sale of food benefits (Welf. & Inst. Code, § 10980, subd. (g)); failure of a sex offender to inform a law enforcement agency of a