People v. Anderson CA6

Filed 12/4/23 P. v. Anderson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H050145 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F25697)

v.

NATHAN JARED ANDERSON,

Defendant and Appellant.

In 2015, defendant Nathan Jared Anderson was sentenced to 15 years 8 months in prison for a series of car thefts committed in 2013. In 2022, he was resentenced to 13 years 8 months in prison. He appeals, contending that the resentencing court did not properly exercise its discretion under Senate Bill No. 81 (2021–2022 Reg. Sess.) to strike a five-year prior serious felony enhancement for his 2009 arson conviction. We will affirm the judgment. I. TRIAL COURT PROCEEDINGS Defendant pleaded no contest to carjacking (Pen. Code, § 215, subd. (a)), attempted carjacking (Pen. Code, §§ 215, subd. (a), 664), two counts of evading a peace officer (Veh. Code, § 2800.2), and two counts of vehicle theft (Veh. Code, § 10851, subd. (a)). He admitted having suffered two prior prison terms (former Pen. Code, § 667.5, subd. (b)), one prior strike (Pen. Code, § 667, subds. (b)–(i)), and one prior serious felony conviction for arson of a vehicle (Pen. Code, §§ 451, subd. (d), 667, subd. (a)) in 2009. Under the plea agreement, 13 additional counts were to be dismissed

after sentencing. All of the charged crimes took place between October 8 and 16, 2013. Because they occurred at different times, the probation officer recommended consecutive sentences totaling 31 years in prison. The trial court imposed concurrent sentences on the attempted carjacking count and the two vehicle theft counts and sentenced defendant to a total of 15 years 8 months in prison, including a five-year prior serious felony conviction enhancement. When defendant was initially sentenced in 2015, the trial court did not have discretion to strike a prior serious felony conviction and the associated five-year sentence enhancement. After legislative changes giving trial courts that discretion, defendant’s sentence was recalled in 2019 on recommendation of the Secretary of the Department of Corrections and Rehabilitation under Penal Code section 1170, subdivision (d) for the trial court to consider striking the five-year enhancement. The court declined to modify the sentence. According to the minute order from the hearing, the trial court based its decision on the “facts and circumstances of the convicted [sic] offense and the defendant’s performance at CDCR.” Defendant again sought resentencing in 2022, this time on the grounds that his two one-year prior prison term enhancements were no longer valid due to various statutory amendments. At the hearing on the petition, defense counsel also asked the court to strike the five-year prior serious felony enhancement under Penal Code section 1385. The court struck the two prior prison term enhancements, but did not strike the serious felony conviction enhancement. After stating that defendant was “very fortunate” not to have received the originally recommended sentence of 31 years in prison, and finding no “clear and convincing evidence that reduction would present a danger to the community,” the court reduced defendant’s sentence by two years but made no further modification. II. DISCUSSION Defendant’s sole contention on appeal is that the trial court abused its discretion under Penal Code section 1385 by not striking the serious felony conviction 2