People v. Ray CA3

Filed 1/8/24 P. v. Ray CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C097611

Plaintiff and Respondent, (Super. Ct. No. CM030757)

v.

KENNETH RAY,

Defendant and Appellant.

Defendant Kenneth Ray appeals from his Penal Code section 1172.75 resentencing.1 He asserts the trial court should have performed a full resentencing rather than simply striking his no-longer-valid, one-year-prior-prison-term enhancement. The People concede the point. We agree and reverse and remand for full resentencing pursuant to section 1172.75. Defendant also asserts the trial court should have considered whether to strike his “Three Strikes” law prior (serious or violent felonies) under the guidelines of section 1385 as recently amended by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill No. 81). On this point, we disagree. We conclude the changes to section 1385 on which defendant relies apply to enhancements, not alternative sentencing schemes such as the Three Strikes law.

1 Undesignated statutory references are to the Penal Code. Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill No. 483) added section 1171.1 to the Penal Code. (Stats. 2021, ch. 728, § 3.) That section has been renumbered as section 1172.75. (Stats. 2022, ch. 58, § 12.) We shall refer to section 1172.75 throughout this opinion. 1

FACTUAL AND PROCEDURAL BACKGROUND In 2010, an amended information charged defendant with two counts of corporal injury to a spouse/cohabitant/child’s parent (§ 273.5, subd. (a); counts 1 & 2). The trial court dismissed a third such count. The information contained prior prison term (§ 667.5, former subd. (b)) and prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)) allegations in connection with each count. A jury found defendant guilty on count 1 and not guilty on count 2. In a bifurcated proceeding, the trial court found the prior conviction and prior prison term allegations to be true. The trial court denied defendant’s motion to strike one or more of his prior strike convictions. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced defendant to 25 years to life on count 1 and a consecutive one-year term for a single section 667.5, former subdivision (b) prior prison term enhancement. This court affirmed the judgment. (People v. Ray (Aug. 16, 2012, C066448) [nonpub. opn.].) Following enactment of Senate Bill No. 483 and the addition of what is now section 1172.75 to the Penal Code, on July 28, 2022, the trial court determined defendant had been sentenced to an enhancement described in that section that had been rendered legally invalid. The court appointed counsel and placed the matter on its calendar for resentencing. At the hearing, the trial court stated that the matter was “very basic,” and that there was not “anything very controversial about this.” The court stated it would “strike the prior prison terms pursuant to . . . [s]ection 667.5[, former subdivision ](b) with the understanding there are two prior prison terms. One of which had been stayed.”2 Otherwise, the trial court did not address defendant’s prison sentence.