People v. McClendon CA5

Filed 3/25/21 P. v. McClendon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080310 Plaintiff and Respondent, (Super. Ct. No. MF013380A) v.

MICHAEL TYRONE MCCLENDON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Lynette Moore, 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, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Poochigian, J. and Franson, J.

Defendant Michael Tyrone McClendon contends on appeal that his two one-year prior prison term enhancements 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 that defendant’s prior prison term enhancements should be stricken. We vacate the sentence, and remand to the trial court with directions to strike the prior prison term enhancements and resentence defendant. PROCEDURAL SUMMARY On May 23, 2019,2 the Kern County District Attorney filed an information charging defendant with kidnapping (§ 207, subd. (a); count 1), two counts of making a criminal threat (one on April 27 and the other on April 28) (§ 422; counts 2 & 3), false imprisonment (§§ 236, 237, subd. (a); count 4), and three counts of misdemeanor domestic battery (on March 27, April 24, and April 27) (§ 243, subd. (e)(1); counts 5, 6, & 7). As to counts 1 and 2, the amended information alleged defendant had served two prior prison terms (§ 667.5, subd. (b)). On October 3, the jury found defendant guilty on counts 2, 3, 6, and 7, but not guilty on counts 1, 4, and 5. On October 4, in a bifurcated proceeding, the trial court found true the allegations that defendant had served two prior prison terms. The prior prison terms were served for a 2015 conviction of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) and a 2012 conviction of possession of a firearm by a felon (former § 12021, subd. (a)(1)). On November 1, the trial court sentenced defendant to five years in prison as follows: on count 2, a three-year term (the upper term) plus two one-year prior prison