People v. Lamarra CA3

Filed 3/15/22 P. v. Lamarra CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) ----

THE PEOPLE, C092865

Plaintiff and Respondent, (Super. Ct. No. 19F7541A)

v.

ROGER THOMAS LAMARRA,

Defendant and Appellant.

Defendant Roger Thomas Lamarra pleaded guilty to child endangerment (Pen. Code, § 273a, subd. (a))1 and admitted serving four prior prison terms (§ 667.5, former subd. (b)) in exchange for probation and a suspended sentence of the upper term of six years on the child endangerment count plus four years for the prior prison term enhancements. After defendant violated probation, the trial court reimposed the suspended sentence. On appeal, defendant asserts that (1) following the enactment of

1 Further undesignated statutory references are to the Penal Code.

1

Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136), his prior prison terms are no longer qualifying offenses for section 667.5, subdivision (b) enhancements, (2) the proper remedy is for this court to strike the four prior prison term enhancements rather than remand for resentencing, and (3) the trial court erred in calculating custody credits. We shall strike defendant’s four prior prison term enhancements and order the abstract of judgment corrected to reflect defendant had, at the time of sentencing, 373 total days in custody credits rather than 357 days. FACTUAL AND PROCEDURAL BACKGROUND On January 30, 2019, law enforcement performed a traffic stop on a vehicle occupied by defendant and a codefendant. Codefendant’s two-year-old grandson was in a car seat in the vehicle. There was a pouch behind the car seat within reach of the child. Inside the pouch were several syringes, three of which contained heroin. Some of the needle caps were not completely secured to adequately cover the syringes. The pouch also contained an unsheathed knife. Defendant and codefendant were charged with child endangerment (§ 273a, subd. (a); count I), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count II), possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a); count III), and defendant with failure to stop at a stop sign (Veh. Code, § 22450, subd. (a); count IV). In connection with count I, it was further alleged defendant had a prior strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)), and served four prior prison terms (§ 667.5, former subd. (b)). Defendant pleaded guilty to child endangerment in count I in exchange for the upper term of six years and admitted four prison priors carrying a one-year term each for a total of 10 years in county jail, with execution of the term suspended. The remainder of