Opinion
2d Crim. No. B300820
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK LOUIS LOEBEL, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Senior Assistant Attorney General, Michael C. Keller and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2018018404)
(Ventura County)
A jury convicted appellant Mark Louis Loebel of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), and misdemeanor fraudulent use of an access card (§ 484g, subd. (a); counts 4 and 5.) The jury acquitted appellant of identity theft (§ 530.5, subd. (a); count 3).
All further statutory references are to the Penal Code. --------
As to counts 1 and 2, the trial court found true the allegations that appellant suffered a prior serious conviction for criminal threats under the Three Strikes law (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)), and served a prior prison term in 2017 for that conviction and a separate burglary conviction (§ former 667.5, subd. (b)).
On July 19, 2019, the trial court sentenced appellant to an aggregate prison term of six years, four months, calculated as follows: The middle term of two years on count 1 (the base term), doubled to four years as a second strike; a consecutive term of one year, four months (one-third the middle term) on count 2; and a consecutive one-year enhancement for appellant's prior prison term (former § 667.5, subd. (b).) The misdemeanor jail sentences on counts 4 and 5 run concurrently with the prison sentence.
Senate Bill No. 136 (SB 136), which became effective on January 1, 2020, amended section 667.5, subdivision (b) to eliminate the one-year enhancements for prior prison terms unless the term served involved a conviction for a sexually violent offense. (Sen Bill No. 136 (2019-2020 Reg. Sess.) § 1.) The statute is retroactive and applies to cases not yet final as of its effective date. (People v. Gastelum (2020) 45 Cal.App.5th 757, 762 (Gastelum); People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) The sole issue on appeal is whether SB 136 requires the striking of appellant's one-year prior prison term enhancement.
The parties agree the enhancement must be stricken under SB 136. The only question is whether a remand for resentencing is necessary. Generally, "when part of a sentence is stricken on review, . . . 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks); Gastelum, supra, 45 Cal.App.5th at p. 762; see People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259.) An exception applies, however, if "an enhancement is erroneously imposed and the trial court has already imposed the maximum possible sentence." (Gastelum, at p. 773; Buycks, at p. 896, fn. 15.)
Here, the trial court did not impose the maximum possible sentence for appellant's convictions. (See People v. Lopez (2019) 42 Cal.App.5th 337, 342.) We therefore strike the one-year prior prison term enhancement imposed under former section 667.5, subdivision (b) and remand the matter for resentencing. (Buycks, supra, 5 Cal.5th at pp. 893, 896, fn. 15; Gastelum, supra, 45 Cal.App.5th at p. 773.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Rocky J. Baio, Judge
Superior Court County of Ventura
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithy, Senior Assistant Attorney General, Michael C. Keller and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.