People v. Garcia CA2/6

Filed 2/22/24 P. v. Garcia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.B325385 (Super. Ct. No. 2016017314) Plaintiff and Respondent, (Ventura County)

v.

JESUS PEDRO GARCIA,

Defendant and Appellant.

Jesus Pedro Garcia appeals an order denying his motion to strike a prior prison term enhancement (former Pen. Code, 1 § 667.5, subd. (b)), for his 2016 conviction for carjacking (§ 215, subd. (a)), under the resentencing provisions of section 1172.75. At the time Garcia filed his motion, he was serving a seven-year consecutive sentence for a 2019 conviction for assault with force likely to produce great bodily injury by a prisoner. (§ 4501, subd. (b).) We conclude, among other things, that: 1) the trial court had jurisdiction to decide the merits of the resentencing issue, and 2)

1 All statutory references are to the Penal Code.

the court did not err because Garcia’s 2019 sentence did not include a prior prison term enhancement. We affirm. FACTS In 2016, Garcia pled guilty to carjacking (§ 215) and he admitted to the imposition of a prior prison term enhancement. (Former § 667.5, subd. (b).) The trial court sentenced him to an aggregate prison term of four years – a three-year sentence for the carjacking count and a consecutive one-year sentence for the former section 667.5, subdivision (b), prior prison term enhancement. In 2019, Garcia committed an offense while in prison. He pled guilty to assault with force likely to produce great bodily injury by a prisoner. (§ 4501, subd. (b).) He was sentenced to a seven-year term to be served consecutively to the term of his 2016 conviction. “Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) . . . amended section 667.5 by limiting the prior prison term enhancement to only prior terms for sexually violent offenses.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380.) “Enhancements based on prior prison terms served for other offenses became legally invalid.” (Ibid.) “The amendment was to be applied retroactively to all cases not yet final on January 1, 2020.” (Ibid.) Thereafter, the Legislature enacted section 1172.75 (former section 1171.1, added by Stats. 2021, ch. 728, § 3; renumbered section 1172.75 by Stats. 2022, ch. 58, § 12), which provides a procedure for the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to create a list of prisoners who are “currently serving a term for a judgment that includes” a prior prison term enhancement to allow the court