People v. James CA4/1

Filed 2/16/21 P. v. James CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076831

Plaintiff and Respondent,

v. (Super. Ct. No. SCE386635)

AARON JAMES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Sentence vacated and remanded with directions. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent. Aaron James appeals challenging only the sentence imposed. Specifically, James contends the court erred in imposing five-year terms for

each of the alleged serious felony priors (Pen. Code,1 § 667, subd. (a)(1)). The three convictions resulted from a single proceeding, thus only one five-year term could lawfully be imposed. Second, James argues we must reverse the true finding on the one year prison prior in light of Senate Bill No. 136, which modified the definition of a “prison prior.” The Attorney General correctly agrees James could only receive one five-year enhancement for the serious felony convictions and that we should strike the true finding on the prison prior. We will remand the case for resentencing with directions to strike two of the five-year enhancements and to strike the true finding on the prison prior. The trial court must conduct a new sentencing hearing on remand in light of our decision. PROCEDURAL BACKGROUND A jury convicted James of one count of residential burglary (§§ 459 and 460, subd. (a); count 1); misdemeanor petty theft (§§ 484 and 488; count 2); and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 3). James admitted four strike priors (§ 667, subd. (b)-(i)). The court struck the four strike priors in order to limit the sentence to 21 years. The 21-year term was comprised of the upper term of six years for the burglary conviction and three five-year terms for the three serious felony priors. James filed a timely notice of appeal. DISCUSSION A. The three serious felony prior convictions The three serious felony priors at issue here were based on convictions for three serious felonies prosecuted in a single proceeding in 2009 (Case