Filed 6/17/24 P. v. Tribble CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH LAMONT TRIBBLE,

Defendant and Appellant.

F087145

(Super. Ct. No. 1407523)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Robert B. 

Westbrook, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and 

Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Appellant Keith Lamont Tribble (appellant) was convicted of multiple offenses 

with two prior strike convictions and a prior prison term enhancement, and sentenced to 

50 years to life plus one year. In 2022, the Department of Corrections and Rehabilitation 

(CDCR) advised the trial court to recall appellant’s sentence to determine whether it 

should strike the prior prison term enhancement. In 2023, the court ordered the 

one-year enhancement term stricken and reimposed the same sentence of 50 years to life 

for the substantive offenses.

On appeal from that ruling, appellant’s counsel filed a brief that summarized the 

facts with citations to the record, raised no issues, and asked this court to independently 

review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant filed a letter 

raising one issue. We review the record and affirm the trial court’s order. 

FACTS1

“On August 27, 2009, H.C. was working as a housekeeper at a motel in Modesto. 

The outer door to the room in which she was working was open while she cleaned the 

bedroom and bathroom. While bent over cleaning the bathtub, she sensed that someone 

was standing behind her. She straightened up, turned around, and saw the appellant. She 

did not hear appellant enter the room because the bathtub water had been running. H.C. 

did not know appellant and asked what he wanted. Appellant did not answer. She 

became scared, raised her hands, and screamed. Appellant grabbed her by the neck, lifted 

her up by one hand, and pushed her against a wall. Appellant used his other hand to 

cover her mouth. H.C. thought that appellant was going to strangle her. She resisted and 

ripped the front of his shirt. She got away from appellant and tried to flee, but appellant 

pulled her by the hair and threw [her] onto one of the beds in the motel room.

1 The following facts are from this court’s nonpublished opinion in appellant’s 

direct appeal, People v. Tribble (Mar. 29, 2012, F062302) (Tribble), which appellant filed 

as an exhibit in support of his motion for resentencing. 
3.

“H.C. said she ‘fell face forward’ on the bed and ended up ‘facing upwards.’ 

Appellant straddled her, hit her in the face, and ripped her bra. She continued to scream 

and appellant repeatedly said, ‘[S]hut up.’ H.C. used her right knee to move appellant to 

his side and made an unsuccessful attempt to reach the front door. When she broke away 

from appellant, he grabbed her by the hair a second time and threw her on the other bed. 

H.C. bounced off the bed and fell face down on the floor. Appellant straddled H.C. a 

second time, reached under her blouse, and touched her breast. He then moved his hips 

back and forth on her hips. At the same time, appellant used a lighter to ignite a glass 

tube pipe. H.C. pulled on appellant’s finger until she heard a ‘pop.’ He got up and ran 

out of the motel room. H.C. reported the incident to the motel manager.

“H.C. sustained bruises to her face and neck and scratches on her back, side, and 

upper chest. She estimated the attack lasted about 10 minutes. Modesto Police Officer 

Mark Phillips responded to the area near the motel to look for a suspect. A community 

service officer informed Phillips that a suspect matching appellant’s description had been 

seen less than a mile from the motel. Officer Phillips drove to that area and saw appellant 

running down an alley. As Phillips approached appellant, he saw that an undercover 

detective had detained appellant and was taking him into custody. Phillips said 

appellant’s pants and boxer shorts were down around his ankles at the time of 

apprehension. Modesto Police Detective Sean Dodge contacted appellant later that day. 

Detective Dodge testified that appellant had recent injuries to his knuckles and scratches 

on his arms. From the window of an ambulance, H.C. later identified appellant as the 

man who attacked her.” (Tribble, supra, F062302.)

“Appellant did not offer any documentary or testimonial evidence on his behalf 

but chose to rely on the state of the prosecution evidence.” (Tribble, supra, F062302.) 
4.

PROCEDURAL BACKGROUND

On March 9, 2010, an information was filed in the Superior Court of Stanislaus 

County charging appellant with count I, assault likely to produce great bodily injury (Pen. 

Code,

2 § 245, subd. (a)(1)); count II, sexual battery on a restrained person (§ 243.4, 

subd. (a)), and stating that conviction of the offense would require appellant to register as 

a sex offender pursuant to section 290; count III, felony false imprisonment by violence, 

menace, fraud, and deceit (§ 236); and count IV, second degree burglary (§ 459), with 

two prior strike convictions (§ 667, subd. (d)) for commission of lewd and lascivious acts 

with a child under the age of 14 years in 1983 and 1988 (§ 288, subd. (a)), and one prior 

prison term enhancement (§ 667.5, subd. (b)). 

Convictions and Sentence

On January 13, 2011, appellant was convicted after a jury trial of counts I, II, and 

III, and found not guilty of count IV. The trial court found true the special allegations 

that he had two prior strike convictions and one prior prison term enhancement. 

On March 29, 2011, the trial court denied appellant’s request to dismiss the 

two prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 and made the following findings.3

“I’ve considered the paperwork and the motions filed in this case, 

and the fact that the defendant has three—this would be with his 

three sex-related crimes, two of which were strikes, this was not a strike. 

I’m going to deny the Romero motion to strike the strikes on the following 

grounds:

“His first strike was in 1983, then he had another conviction in 1984, 

1986, and 1989. He was convicted of two other felonies receiving local 

time in both of those cases.

2 All further statutory citations are to the Penal Code unless otherwise indicated.

3 Appellant filed the reporter’s transcript from his sentencing hearing as an exhibit 

in support of his motion for resentencing. 
5.

“[In] 1992, [appellant] was sentenced to the state prison.

“[In] 1994, he had two misdemeanor convictions, had three parole 

violations in 1994, one in 1996. [In] 1997 he was sentenced to the state 

prison for 16 months. [He] [h]ad a parole violation in 1998.

“[In] 1998[,] he received two years state prison on a registration 

case, [which] appeared to be concurrent with a three-year state prison on a 

new sex strike offense, and then he had two parole violations in 2001.

“In 2003, he was committed as a sexually violent predator for 

two years.

“And [in] 2008[,] [appellant] was before this court and received an 

offer from the prosecution to give him 16 months state prison for a 

[section] 290. 

“And whenever I take a plea and strike strikes, I inform the 

defendant that the strikes are gone for this case and this case only, and that 

they would come back if a new felony offense occurs. And in spite of that, 

[appellant] had two parole violation[s] in 2009 after his release. And 

what’s the most troubling to the Court is that [appellant] was out three days 

from the state prison and was on electronic monitoring when this crime 

occurred. And based on those issues, the Court is denying the strike.

“[Appellant] obviously has not learned his lesson. This woman was 

trying to do her job and is obviously very traumatized by what happened.” 

The trial court found appellant was “a serious danger to society,” he had numerous 

prior convictions and parole violations, and he was on parole when he committed the 

offenses. The court found consecutive sentences were appropriate because appellant 

engaged in separate acts of violence. The court sentenced appellant to two consecutive 

third strike terms of 25 years to life for counts I and II, a concurrent term for count III, 

and a consecutive one-year term for the prior prison term enhancement. 

On direct appeal, this court ordered the concurrent term for count III stayed 

pursuant to section 654, and affirmed the judgment as modified. (Tribble, supra,

F062302.) An amended abstract of judgment was subsequently filed. 
6.

RECALL AND RESENTENCING

In or about June 2022, CDCR filed a document with the trial court that identified 

appellant as a person in custody serving a sentence for an enhancement that had been 

“repealed by Senate Bill [No.] 180 [(2017–2018 Reg. Sess.) (Senate Bill 180)] and/or 

Senate Bill [No.] 136 [(2019–2020 Reg. Sess.) (Senate Bill 136)].” 

On March 29, 2023, and May 8, 2023, appellant filed sentencing briefs and argued 

that the one-year term imposed for the section 667.5, subdivision (b) prior prison term 

enhancement was invalid as a result of subsequently enacted legislation, and had to be 

stricken. Appellant also requested the trial court dismiss his two prior strike convictions 

and resentence him to a determinate term based on his background, drug use, and the age 

of the prior strike convictions. Appellant submitted supporting exhibits consisting of 

documents about his good behavior, educational achievements, and counseling while in 

prison. 

The Prosecution’s Opposition

On August 18, 2023, and November 6, 2023, the prosecution filed opposition to 

appellant’s request to be resentenced. The prosecution agreed the trial court must dismiss 

the section 667.5, subdivision (b) prior prison term enhancement based on subsequently

enacted legislation. The prosecution also agreed the court had discretion to resentence 

appellant. However, the prosecution argued the court should not dismiss the prior strike 

convictions or reduce appellant’s sentence because he was a danger to public safety. In 

support of this argument, the prosecution cited the facts of the underlying offenses, that 

appellant committed the offenses after being released from prison three days earlier, and 

he later claimed he was on his way to register as a sex offender when he attacked the 

victim. 

The prosecution attached documentary exhibits in support of the arguments about 

appellant’s lengthy criminal record, including his prior convictions for committing lewd 

and lascivious acts on his stepbrother’s daughter in 1982, and then committing the same 
7.

offenses on a minor under the age of 14 years in 1987. In 1998 and 2008, appellant was 

convicted for failing to register as a sex offender. In 2003, he was found to be a sexually 

violent predator and committed to Atascadero State Hospital for two years. He had 

numerous parole violations and was returned to prison in 1994, 1996, 1998, 2001, and 

2009. 

The prosecution also submitted documents to undermine appellant’s account of his 

behavior in prison, and argued the records showed that he repeatedly violated prison rules 

and committed several offenses while in custody from 2012 to 2019. 

Finally, the prosecution submitted the transcript of appellant’s hearing before the 

Board of Parole Hearings in 2022 (the Board). The Board denied parole and found 

appellant was an unreasonable risk to public safety based on his prior convictions for 

sexual and violent offenses, poor performance on parole and supervised release, his 

institutional history of violence and non-compliance in prison, and an assessment that he 

was at high risk to reoffend. 

The Trial Court’s Order

On September 6, 2023, the trial court convened a hearing on CDCR’s notice for 

recall and resentencing. The parties agreed the court had to dismiss the prior prison term 

enhancement. As to appellant’s request for resentencing on his convictions, the court said 

it had reviewed the parties’ briefs but not the supporting exhibits, and continued the 

matter to conduct such a review. 

On November 6, 2023, the trial court dismissed the prior prison term 

enhancement. The court stated it had reviewed the parties’ motions and supporting 

exhibits, and denied appellant’s motion to dismiss the prior strike convictions. 

“Upon a careful review of the record in this matter, the Court does 

decline the invitation to strike the strike priors. At the outside it is noted 

that the sentencing Court was also asked to provide the same relief, and it 

also declined to do so.
8.

“The facts as stated in the Court of Appeals unpublished opinion 

[from appellant’s direct appeal] set forth the compelling reasons for the trial 

court’s denial, and those facts remain unchanged today. The nature of the 

assault combined with lengthy criminal history set forth in the opinion are

... immutable factors for consideration in that they are not going to change.

“Among those factors [that] would weigh heavily upon the Court’s 

decision is the fact that this crime occurred within days of being released on 

parole for [his] prison sentence. It is also not lost on this Court that 

[appellant] avoided a 25-year-to-life sentence once before when he 

accepted a plea bargain for 16 years [in an earlier case].

“The Court also considered additional evidence by the defense that 

shows [appellant] has recently engaged in programming [in prison] and is 

making commendable efforts to address the causes of his antisocial 

criminal behavior. The letters provided to the Court show that [appellant] is 

beginning to accept accountability for th[ese] actions and to understand the 

triggers and warning signs and also to formulate a plan for his 

rehabilitation.

“[Appellant] also points out the age of his prior convictions, which 

received [sic] in the rear view with each passing year of his sentence. The 

[prosecution] have also provided evidence addressing the severity of the 

committing offense and also note that [appellant’s] disciplinary record 

while in prison has been imperfect.

“The [prosecution] also note that the [Board] recently denied his 

release and knew that [appellant] would present a danger to the community. 

Considering all these facts and circumstances presented, the Court 

[declines] at this time to exercise its authority under Section 1385. The 

nature of this committing offense, criminal history and a demonstrated 

inability to curb impulsive criminal behavior within days of being released 

from prison the last time [does] cause great concern, but striking his 

convictions would not be in furtherance of justice.” 

The trial court recalled appellant’s sentence and resentenced him to 

two consecutive terms of 25 years to life for counts I and II, stayed the term imposed for 

count III, and dismissed the prior prison term enhancement. 

On November 7, 2023, appellant filed a timely notice of appeal. 
9.

DISCUSSION

As noted above, appellant’s counsel has filed a Wende brief with this court. The 

brief also includes counsel’s declaration indicating that appellant was advised he could 

file his own brief with this court. We address an issue appellant raised in a letter brief.

Senate Bills 136 and 483

“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to 

impose a one-year sentence enhancement for each true finding on an allegation the 

defendant had served a separate prior prison term and had not remained free of custody 

for at least five years. [Citation.] Effective January 1, 2020, [Senate Bill 136] amended 

section 667.5 by limiting the prior prison term enhancement to only prior terms for 

sexually violent offenses. [Citations.] Enhancements based on prior prison terms served 

for other offenses became legally invalid. [Citation.] The amendment was to be applied 

retroactively to all cases not yet final on January 1, 2020.” (People v. Burgess (2022) 

86 Cal.App.5th 375, 379–380 (Burgess).)

“Later, in 2021, the Legislature enacted [Senate Bill 483]. This bill sought to 

make the changes implemented by Senate Bill 136 retroactive. [Citation.] It took effect 

on January 1, 2022, and added former section 1171.1, now section 1172.75 ....” 

(Burgess, supra, 86 Cal.App.5th at p. 380.)

Section 1172.75 establishes a mechanism to provide affected defendants a remedy 

for those legally invalid enhancements, and the resentencing process begins with 

corrections officials. (People v. Cota (2023) 97 Cal.App.5th 318, 330.) “Subdivision (b)

... directs the Secretary of [CDCR] and the correctional administrator of each county to 

‘identify those persons in their custody currently serving a term for a judgment that 

includes an enhancement described in subdivision (a) and ... provide the name of each 

person ... to the sentencing court that imposed the enhancement.’ ” (Burgess, supra, 

86 Cal.App.5th at p. 380.) “After the trial court receives from the CDCR and county 

correctional administrator the information included in subdivision (b) [of the statute], ‘the 
10.

court shall review the judgment and verify that the current judgment includes a 

sentencing enhancement described in subdivision (a),’ and if so, ‘recall the sentence and 

resentence the defendant.’ ” (Burgess, supra, 86 Cal.App.5th at p. 380.)

The Trial Court’s Ruling

In response to CDCR’s letter, the trial court correctly ordered the section 667.5, 

subdivision (b) enhancement stricken. The court also acknowledged it could resentence 

appellant on the substantive offenses. (See, e.g., People v. Monroe (2022) 85 

Cal.App.5th 393, 395–396; cf. People v. Superior Court (Guevara) (2023) 97 

Cal.App.5th 978, 983, rev. granted. Mar. 12, 2024, S283305.) As set forth above, the 

court made lengthy findings when it denied appellant’s motion to dismiss the prior strike 

convictions, and it did not abuse its discretion.

Gadlin

In his letter to this court, appellant asserts his convictions were “reduce[d]” to 

“non-violent” offenses and he was eligible under “Prop 51 [sic]” and “the Gadding [sic] 

ruling for three strikes non-violence [sic] parole board consideration.” 

It appears appellant is referring to Proposition 57 and In re Gadlin (2020) 

10 Cal.5th 915. Proposition 57 was approved in 2016, and amended the California 

Constitution to provide “that ‘[a]ny person convicted of a nonviolent felony offense and 

sentenced to state prison shall be eligible for parole consideration after completing the 

full term for his or her primary offense. [Citation.] The initiative also directed [CDCR] 

to ‘adopt regulations in furtherance of these provisions’ and instructed the Secretary of 

[CDCR] to ‘certify that these regulations protect and enhance public safety.’ ” (Gadlin, at 

p. 919.) In response, CDCR adopted regulations that “exclude[d] from nonviolent

offender parole consideration any inmate who ‘is convicted of a sexual offense that

currently requires or will require registration as a sex offender under the Sex Offender 

Registration Act ....’ ” (Ibid.)
11.

Gadlin held these exclusionary regulations were inconsistent with the terms of 

Proposition 57 and directed CDCR to repeal the provisions. (In re Gadlin, supra,

10 Cal.5th at pp. 920, 943.) “Whether an inmate is suitable for parole depends in part on 

that individual’s prior criminal history and the nature of his or her current offense. Thus, 

the [Board] may consider an inmate’s prior or current sex offense convictions when 

evaluating the inmate’s suitability for parole. [Citations.] [CDCR’s] regulations, 

however, treat all individuals with convictions for registerable sex offenses as 

categorically ineligible for parole, even when [CDCR’s] own regulations classify those 

inmates as having been convicted of a nonviolent felony. In doing so, [CDCR] denies 

even the mere possibility of parole to an entire category of ‘person[s] convicted of a 

nonviolent felony offense.’ [Citation.] This precondition to parole consideration is 

inconsistent with the Constitution as amended by Proposition 57.” (Id. at pp. 942–943.)

We question whether this issue is cognizable on appeal from the trial court’s ruling 

upon recall of appellant’s sentence. In any event, appellant’s claim that he is entitled to a 

parole board hearing under Gadlin and Proposition 57 raises a moot point. Appellant 

received and attended a parole board hearing in 2022, and the hearing transcript was filed 

as a supporting exhibit with his motion for resentencing. At that hearing, the presiding 

commissioner advised appellant that his original eligibility for a parole date had been 

“significantly out in the future,” but there had been “a change in the law” that made him 

currently eligible for parole. At the conclusion of the lengthy hearing, the Board denied 

parole and found appellant posed an unreasonable risk to public safety based on his 

current dangerousness. The Board scheduled his next parole hearing for 2025. 

After independent review of the record, we find that no reasonably arguable 

factual or legal issues exist.

DISPOSITION

The trial court’s order of November 6, 2023, is affirmed.