People v. Milligan CA2/6

Filed 9/22/22 P. v. Milligan CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B313515 (Super. Ct. No. 1176446) Plaintiff and Respondent, (Santa Barbara County)

v.

RONALD MILLIGAN,

Defendant and Appellant.

In an unpublished opinion filed on May 29, 2008, we affirmed Ronald Milligan’s judgment of conviction. (People v. Milligan, B192400 (Milligan).) He appeals from an order denying a recommendation by the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his 2006 sentence and resentence him pursuant to Penal Code section 1170, former subdivision (d)(1).1 The People concede that we “should conditionally reverse the [order] and remand for

1 All statutory references are to the Penal Code.

resentencing under the amended statute.” We accept the concession and reverse. Appellant’s Sentence A jury convicted appellant of second degree robbery (count 1 – § 211) and evading arrest with willful disregard for the safety of persons or property (count 2 – Veh. Code, § 2800.2, subd. (a)). “The trial court found that appellant had six prior ‘strike’ convictions or juvenile adjudications [and six prior serious felony convictions] (§§ 667, subd. (a)(1), (e)(2)(A); 1170.12, subd. (c)(2)(A), 1192.7, subd. (c)) and one qualifying prior prison term. (§ 667.5, subd. (b).)” (Milligan, supra, slip opn. at p. 1.) Appellant’s sentence was as follows: “[O]n count 1 [robbery], an indeterminate term of life with a minimum indeterminate term of 36 years, plus a determinate term of 31 years, composed of six, five-year [serious felony] enhancement terms under section 667, subdivision (a)(1) and one, one-year enhancement term under section 667.5, subdivision (b) for a total term of 67 years to life. On count 2 [evading arrest], a consecutive indeterminate term of life with a minimum indeterminate term of 25 years, plus a determinate term of one year under section 667.5, subdivision (b) for a total term of 26 years to life.” (Milligan, supra, slip opinion at p. 5.) CDCR Secretary’s Recommendation The CDCR Secretary’s recommendation concerns the trial court’s imposition of the six, five-year serious felony enhancements, totaling 30 years, as to count 1 (robbery) pursuant to section 667, subdivision (a)(1). The Secretary stated: “Courts were previously barred from striking prior serious felony convictions for purposes of enhancement under this section. However, effective September 30, 2018, courts are now