People v. Simon CA1/1

Filed 12/14/22 P. v. Simon CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A164229

v. (Lake County EDDIE CHRISTIAN SIMON, JR., Super. Ct. No. CR960924) Defendant and Appellant.

MEMORANDUM OPINION1

A jury convicted defendant Eddie Christian Simon, Jr., of making a criminal threat, interference with another’s civil rights, and vandalism, and found true special allegations that defendant had suffered two prior serious felony convictions. The trial court sentenced defendant to 16 years in prison, which included two consecutive five-year enhancements for the prior serious felony conviction allegations (Pen. Code, § 667, subd. (a)(1)). Defendant raises a single issue on appeal—that the case should be remanded to allow the sentencing court to consider whether to exercise its discretion to strike the prior convictions. The People concede remand is warranted. We agree.

This case is appropriately resolved by way of memorandum opinion 1

pursuant to pursuant to California Standards of Judicial Administration, section 8.1, subdivisions (1) and (3).

1

Prior to sentencing, the trial court granted, in part, a Romero motion,2 dismissing one prior strike conviction for sentencing purposes. After doing so, the court stated, “There is no striking of the other enhancements. As I understand it, there’s two of them found by the jury; I have no authority to strike those.” The court then sentenced defendant to 16 years, consisting of the upper term of three years, “doubled to six years” for count 1, and two, five-year consecutive terms for each of the prior serious felony conviction allegations.3 Defendant maintains, and the Attorney General agrees, the case must be remanded for the trial court to consider whether to exercise its discretion to also strike one or both of the five-year terms for the prior serious felony convictions imposed under Penal Code section 667, subdivision (a). “Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement.” (People v. Jones (2019) 32 Cal.App.5th 267, 272.) However, effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) vested sentencing courts with discretion to strike enhancements under Penal Code section 667, subdivision (a) for prior convictions of serious felonies. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.) Remand is required where a trial court is unaware of its sentencing discretion and might have exercised that discretion in the defendant’s favor if it had been aware. “ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more