People v. Bermudez CA5

Filed 3/2/22 P. v. Bermudez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, F080586, F080590, F080591

v. (Kern Super. Ct. Nos. BF168991A, BF164915A, BF168492A) ACENCION BERMUDEZ,

Defendant and Appellant. OPINION

THE COURT* APPEAL from judgments of the Superior Court of Kern County. Judith K. Dulcich, Judge. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Jeffrey D. Firestone and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Acencion Bermudez contends on appeal that the three one-year prior prison term enhancements, imposed based on his prior felony convictions for drug possession and sale and firearm possession, 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) and section 1171.1, as added by Senate Bill No. 483 (2021–2022 Reg. Sess.) (Senate Bill 483). The People concede the enhancements should be stricken and defendant’s term of imprisonment should be reduced. We also ordered the parties to submit supplemental briefing regarding the impact of Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which modified section 1170, subdivision (b), to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence. (Stats. 2021, ch. 731, § 1.3.) It further modified section 1170, subdivision (b), to require that the circumstances in aggravation be found true beyond a reasonable doubt or be stipulated to by the defendant. (Ibid.) The parties agree that defendant is entitled to the benefit of Senate Bill 567. We accept the People’s concessions. We strike the prior prison term enhancements, vacate defendant’s sentence, and remand for resentencing consistent with the changes brought about by Senate Bill 567. In all other respects, we affirm. PROCEDURAL SUMMARY On October 4, 2016, the Kern County District Attorney filed an information in case No. BF164915A (Court of Appeal case No. F080590) charging defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1). The information further alleged that defendant had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served three prior prison terms for possession of a firearm by a felon (former § 12021, subd. (a)(1)), possession of a controlled substance (Health & Saf.