People v. Dering CA6

Filed 8/30/23 P. v. Dering CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050744 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS091218A)

v.

PHILLIP JAMES DERING,

Defendant and Appellant.

MEMORANDUM OPINION1 In 2009, defendant Philip James Dering was convicted by a jury of assault by means or force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) 2 and battery with serious bodily injury (§ 243, subd. (d)). The jury also found true the allegations that Dering inflicted great bodily injury (§ 12022.7, subd. (a)), had served two prior prison terms (former § 667.5, subd. (b)), had a prior conviction for a serious felony (§ 667, subd. (a)), and had a prior strike conviction (§ 1170.12, subd. (c)(1)). The trial

1 We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2007) 97 Cal.App.4th 847, 853-855.) 2 Unspecified statutory references are to the Penal Code.

court sentenced him to a total term of 18 years, which included two one-year terms for his prior prison terms under former section 667.5, subdivision (b).3 On June 20, 2022, Dering filed a letter requesting that the trial court recall his sentence and resentence him pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.), as his enhancements under former section 667.5, subdivision (b) were no longer valid. After an evidentiary hearing, the trial court denied his request, finding “by clear and convincing evidence that imposing a lesser sentence would endanger public safety based on [Dering’s] behavior in state prison.” The parties agree that the trial court erred and that remand is required. Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.), amended section 667.5, subdivision (b) and limited the enhancement for prior prison terms to those prison terms served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). Effective January 1, 2022, the Legislature also enacted Senate Bill No. 483. In part, Senate Bill No. 483 added former section 1171.1 to the Penal Code, which was subsequently renumbered to section 1172.75. (Stats. 2021, Ch. 728, § 3; Stats. 2022, Ch. 58, § 12, eff. June 30, 2022.) Section 1172.75 provides that “[a]ny 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 as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.” (§ 1172.75, subd. (a).) Section 1172.75, subdivision (b) sets forth a procedure by which the Secretary of the Department of Corrections and Rehabilitation (CDCR) shall identify eligible persons in custody, and subdivision (c) sets forth a timeline by which the trial court shall review, recall, and resentence eligible individuals. In part, section 1172.75,