People v. Ross CA3

Filed 4/27/21 P. v. Ross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C090518

Plaintiff and Respondent, (Super. Ct. No. CRF18-6265)

v.

LARRY DARNELL ROSS, SR.,

Defendant and Appellant.

Defendant Larry Darnell Ross, Sr., appeals a judgment following a jury’s determination that he committed one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and one count of possession of a controlled substance in jail (Pen Code, § 4573.6),1 as well as findings that defendant had a prior strike (§ 667, subds.

1 Undesignated statutory references are to the Penal Code.

1

(c), (e)(1)) and had served two prior prison terms (§ 667.5, subd. (b)), for which defendant received an aggregate prison term of eight years. On appeal, defendant raises three challenges to his sentence. First, he seeks relief in light of the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), which would eliminate his two 1-year prior prison term enhancements. Second, defendant asks that we stay his concurrent prison term pursuant to section 654. Finally, defendant argues the trial court abused its discretion in failing to strike his prior strike at sentencing. We agree that defendant is entitled to relief under Senate Bill 136 (2019-2020 Reg. Sess.), requiring remand for resentencing. In light of this determination, we will direct the trial court to allow defendant to present his section 654 claim on remand. Finding no merit in defendant’s remaining contention, the judgment is otherwise affirmed. BACKGROUND The People’s April 26, 2019 information charged defendant with possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 1), possession of a controlled substance in jail (§ 4573.6; count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), unlawful possession of ammunition (§ 30305, subd. (a); counts 4 & 5), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 6). The information alleged that defendant had a prior strike (§ 667, subds. (c), (e)(1)) and two prison priors (§ 667.5, subd. (b)). Defendant pleaded not guilty and denied all special allegations. Thereafter, the matter was tried to a jury. The People presented the testimony of Yolo County Sheriff’s Deputy Gary Richter, who was on patrol when he noticed a car pulling into a closed water park. Deputy Richter investigated, discovering defendant and another individual in the car. A probation search of defendant revealed a pocketknife and cell phone. Deputy Richter detained defendant and his passenger, Ms. Edwards, with