People v. Brooks CA2/6

Filed 8/16/21 P. v. Brooks CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B307652 (Super. Ct. No. TA137685) Plaintiff and Respondent, (Los Angeles County)

v.

LEGEND BROOKS,

Defendant and Appellant.

This is the third appeal from the sentence imposed after Legend Brooks was convicted, by jury, of assault with a firearm and possession of a firearm by a felon. (Pen. Code, §§ 245, subd. (b), 29800, subd. (a)(1).)1 While the appeals were pending, our Legislature amended section 667.5. (Stats. 2019, ch. 590. § 1.) As amended, the statute authorizes a one-year prior prison term enhancement only where the prior term was served for a sexually violent offense. (§ 667.5, subd. (b).) Brooks’

All further statutory references are to the Penal Code 1

unless otherwise stated.

sentence includes a one-year prior prison term enhancement imposed under the former version of section 667.5. Because his prior prison term was not for a sexually violent offense, Brooks contends the matter must be remanded for resentencing. Respondent concedes a remand is necessary. We agree. FACTS AND PROCEDURAL HISTORY Brooks was convicted in 2016 of assault with a firearm and possession of a firearm by a felony. The trial court imposed a sentence of 16 years, 8 months, including a 1-year prior prison term enhancement under former section 667.5, subdivision (b). We affirmed the conviction, but remanded for resentencing, so the trial court could exercise its newly- established discretion to impose or strike the firearm use enhancement. (§§1385, 12022.5, subd. (a); People v. Brim, et al. (Oct. 2, 2018, B275782) [non-pub. opn.].) The trial court entered a minute order declining to strike the firearm use enhancement before the remittitur issued and outside the presence of the parties or their counsel. We remanded for resentencing at a hearing at which appellant had the right to be present with counsel. (People v. Brooks (Nov. 18, 2019, B294596) [non-pub. opn.].) At the resentencing hearing, in July 2020, the trial court again declined to strike the firearm use enhancement. It also left the prior prison term enhancement unchanged. DISCUSSION Effective January 1, 2020, Senate Bill No. 136 (2019- 2020 Reg. Sess.) amended section 667.5, subdivision (b) to authorize a one-year prior prison term enhancement only where the prior prison term was served “for a sexually violent