People v. Turner CA5

Filed 6/23/21 P. v. Turner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080803 Plaintiff and Respondent, (Super. Ct. No. VCF353621B) v.

GERALD TURNER, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Byron C. Lichstein, 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, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Gerald Turner appeals the denial of his motion for sentence modification, requesting that his one-year prior prison term enhancement 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). Defendant acknowledges that his judgment was final for purposes of In re Estrada (1965) 63 Cal.2d 740 before the effective date of Senate Bill 136. However, he contends the equal protection clauses of the state and federal constitutions compel conferral of the ameliorative benefit of Senate Bill 136 upon all defendants, regardless of whether their convictions are final on appeal. The People argue that the order denying defendant’s motion is not appealable and also disagree on the merits. We agree with the People on both accounts. We therefore dismiss defendant’s appeal. PROCEDURAL SUMMARY On July 26, 2017, the Tulare County District Attorney filed an amended complaint charging defendant with pandering by procuring a minor (§ 266i, subd. (b)(1); counts 6 & 10), pimping a minor (§ 266h, subd. (b)(2); count 7), and human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1); counts 8, 9 & 11). The amended complaint further alleged defendant had suffered two prior serious felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and served two prior prison terms (§ 667.5, subd. (b)). On January 16, 2018,2 Defendant pled guilty to counts 8 and 11 and admitted a prior strike conviction and two prior prison terms. Defendant’s prior prison terms were served for convictions of escaping from prison (§ 4530, subd. (b)) and possession of controlled substances in prison (§ 4573.6). On February 26, the trial court sentenced defendant to a term of 22 years in prison as follows: on counts 8 and 11, 10 years (the