California Court of Appeal Jul 22, 2022 No. E077438Unpublished
Filed 7/22/22 P. v. Aversa CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077438
v. (Super.Ct.No. 16CR063347)
ADAM AVERSA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Reversed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Steve Oetting, Assistant Attorney General, Warren J. Williams, and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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Adam Joseph Aversa appeals from an order denying his motion to modify his
sentence. Aversa argues that the trial court must resentence him because recent
legislation invalidated enhancements that the court imposed under Penal Code section
667.5, subdivision (b). (Unlabeled statutory citations refer to the Penal Code.) The
People concede that Aversa is entitled to resentencing. We agree with the parties, reverse
circumstances for sentencing purposes include prior convictions that “are numerous or of
increasing seriousness”].)
In this case, the court imposed two one-year enhancements under former section
667.5, subdivision (b), but the enhancements are now “legally invalid.” (§ 1171.1,
subd. (a).) Aversa served the prior prison terms for shooting at an inhabited dwelling and
possessing a firearm as a felon. Those are not sexually violent offenses. (Ibid.; Welf. &
Inst. Code, § 6600, subd. (b).) The trial court correctly denied his motion to modify his
sentence in May 2021 because Senate Bill 483 was not yet the law. But the legislation
took effect while this appeal was pending, and there is no dispute that Aversa is entitled
to resentencing under section 1171.1. The CDCR should have already informed the trial
court of Aversa’s eligibility for resentencing. Correctional officials had until July 1,
2022, to identify eligible individuals. (§ 1171.1, subd. (b)(2).)
Given Aversa’s undisputed eligibility for resentencing, we reverse the order
denying his motion to modify his sentence. On remand, the court shall recall Aversa’s
sentence and resentence him consistent with section 1171.1. Among other things, the
court must apply any other relevant, ameliorative changes in the law (§ 1171.1,
subd. (d)(2)), including Senate Bill 567’s changes to section 1170, subdivision (b). The
People may proceed under the new law by endeavoring to prove aggravating
circumstances beyond a reasonable doubt (§ 1170, subd. (b)(2)), or they “may accept
resentencing on the record as it stands.” (Lopez, supra, 78 Cal.App.5th at p. 468.)
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DISPOSITION
The order denying Aversa’s motion to modify his sentence is reversed. On
remand, the trial court shall recall his sentence and resentence him under section 1171.1.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant is entitled to resentencing because the prior prison term enhancements imposed under former Penal Code section 667.5, subdivision (b) are now legally invalid under Senate Bill 483.
Issues
Whether the defendant is entitled to resentencing due to the retroactive invalidation of prior prison term enhancements under Senate Bill 483.
Whether the trial court must apply other ameliorative changes in law, such as Senate Bill 567, during the resentencing process.
Disposition. reversed
Quotations verified verbatim against the opinion
“Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.”
“On remand, the court shall recall Aversa’s sentence and resentence him consistent with section 1171.1.”