People v. Estrada CA6

Filed 4/30/21 P. v. Estrada CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047459 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1755382)

v.

RAYMOND ANTHONY ESTRADA,

Defendant and Appellant.

A jury convicted defendant Raymond Anthony Estrada of making criminal threats and found true that he had suffered a prior strike conviction and a prior serious felony conviction and had served a prior prison term. The trial court sentenced defendant to a prison term of eight years eight months. That term included a consecutive five-year enhancement under Penal Code section 667, subdivision (a)(1)1 for the prior serious felony conviction and a one-year enhancement under section 667.5, subdivision (b), for the prior prison term. Following a prior appeal, we remanded the matter for resentencing in light of amendments to sections 1385, subdivision (b) and 667, subdivision (a), to allow the trial court to exercise its discretion to strike the prior serious felony conviction for sentencing purposes. On remand, the trial court declined to strike the prior serious felony conviction; defendant appealed. Since the resentencing, Senate Bill 136 amended section 667.5, subdivision (b), to limit prior prison term enhancements to prior prison terms that were served for sexually violent offenses. Defendant now argues, and the

1 All further statutory references are to the Penal Code unless otherwise indicated.

Attorney General concedes, that Senate Bill 136 applies retroactively to this case, such that defendant is no longer subject to a one-year prison prior enhancement under section 667.5, subdivision (b). We agree and reverse and remand for resentencing. I. BACKGROUND2 The facts of defendant’s offense are not relevant to the sole issue on appeal. Accordingly, we do not summarize them here. On October 19, 2017, the Santa Clara County District Attorney charged defendant by information with making criminal threats in violation of section 422. The information also alleged that defendant had a prior strike offense conviction (§§ 667, subds. (b)-(i), 1170.12), had a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). Following trial, the jury found defendant guilty of making criminal threats. Following a separate trial on the prior conviction allegations, the jury found those allegations to be true. On January 29, 2018, the trial court denied defendant’s Romero motion. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court then sentenced defendant, imposing the low term of 16 months for the section 422 violation, which was doubled to 32 months by the prior strike, a consecutive five-year enhancement for the prior serious felony conviction (§ 667, subd. (a)), and a consecutive one-year enhancement for the prior prison term (§ 667.5, subd. (b)) for an aggregate term of eight years eight months. Defendant appealed and, in a prior opinion, this court reversed and remanded for resentencing because new legislation granted trial courts discretion to strike the prior serious felony conviction for sentencing purposes. On October 4, 2019, the trial court, on