People v. Wallen CA5

Filed 6/30/21 P. v. Wallen 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079988 Plaintiff and Respondent, (Super. Ct. No. PCF376048) v.

ANTHONY ALLEN WALLEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Patrick J. Hoynoski, 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, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Smith, J. and Meehan, J.

Defendant Anthony Allen Wallen 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). He further contends that the abstract of judgment contained clerical errors that require correction. The People agree on both accounts. We strike the prior prison term enhancements and order the abstract of judgment corrected. As modified, we affirm. PROCEDURAL SUMMARY On February 26, 2019,2 the Tulare County District Attorney filed an information charging defendant with vehicle theft (Veh. Code, § 10851; count 1), receiving a stolen vehicle (§ 496, subd. (d); count 2), and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377; count 3). As to counts 1 and 2, the information alleged defendant had suffered a prior vehicle theft conviction (§ 666.5) and had served two prior prison terms (§ 667.5, subd. (b)). On June 3, a jury found defendant guilty on all three counts. At a bifurcated proceeding on July 17, the trial court found true the prior prison term allegations but not true the prior vehicle theft allegation. Defendant’s prior prison terms were served for a 2013 conviction of second degree burglary (§ 459) and 2015 convictions of second degree burglary (§ 459) and receiving stolen property (§ 496, subd. (a)). On July 17, the trial court sentenced defendant as follows: on count 1, three years (the upper term) in local custody pursuant to section 1170, subdivision (h)(5)(A); on count 2, two years (the middle term) stayed pursuant to section 654. The court also imposed and stayed two prior prison term enhancements. On September 12, defendant filed a notice of appeal.