People v. Williams CA5

Filed 3/16/22 P. v. Williams 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080497 Plaintiff and Respondent, (Super. Ct. Nos. CR-19-004962 v. & CR-18-000744)

ROBERT DARRELL WILLIAMS II, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Stephanie L. Gunther, 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 Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- In 2018, appellant Robert Darrell Williams II pled no contest to receiving a stolen vehicle (Pen. Code,1 § 496d, subd. (a)) and admitted to serving a prior prison term (§ 667.5, subd. (b)) (2018 case). He was sentenced to a split sentence of five years—

1 All further undesignated statutory references are to the Penal Code.

18 months of which he was to serve in custody in county jail and 42 months of which he was to serve on mandatory supervision. While on mandatory supervision, appellant committed additional offenses. In 2019, he pled no contest to dissuading a victim (§ 136.1, subd. (a)(2)), possession of heroin and fentanyl (Health & Saf. Code, § 11351), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (2019 case). On the 2019 case, appellant was sentenced to an aggregate prison term of four years eight months. A few days later, the court ordered appellant’s remaining term of mandatory supervision on his 2018 case to be converted to a straight prison sentence and be served concurrent to his prison term in the 2019 case. Appellant raises three sentencing issues with regard to the 2018 case. He contends (1) the four-year term initially imposed for the receiving a stolen vehicle conviction exceeded the three-year statutory maximum, and is therefore unauthorized and must be reduced; (2) the matter must be remanded for the court to consider shortening the term imposed for the 2018 case because the court was unaware it had discretion to do so at the time it ordered the remaining time on appellant’s mandatory supervision sentence to be served in prison; and (3) the one-year prior prison term enhancement must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.). Respondent concedes error on the first and third contentions; but as to the second, contends appellant forfeited the issue by failing to object below. We agree with respondent on the first and third contentions and remand for resentencing in the 2018 case. We do not reach the merits of appellant’s second contention in light of our remand. In all other respects, we affirm the judgment. FACTS On May 14, 2018, appellant was charged by complaint of unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a); count I); receiving a stolen vehicle (§ 496d, subd. (a); count II); possession of burglary tools (§ 466; count III); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count IV). The complaint alleged as to counts I and II that appellant had suffered two prior felony theft convictions involving vehicles (§ 666.5) and one prison prior (§ 667.5, subd. (b)). On July 24, 2018, 2.