Filed 9/14/20 P. v. Rivera CA2/7

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ALEXANDER 

RIVERA,

Defendant and Appellant.

 B299361

 (Los Angeles County

 Super. Ct. No. GA089208)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Jared D. Moses, Judge. Affirmed with 

directions.

Michele A. Douglass, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, David E. Madeo and Nancy Lii 

Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Michael Alexander Rivera appeals from the judgment 

entered at a resentencing hearing held after remand from this 

court. (See People v. Rivera (Feb. 14, 2019, B285951) [nonpub.

opn.].) Rivera contends only that the trial court failed to consider 

whether a previously imposed one-year prior prison term 

enhancement should be struck, as we had directed. The trial 

court did, in fact, strike the enhancement. Accordingly, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Rivera was convicted by a jury of second degree robbery.1 

Although the court found at a bifurcated bench trial that Rivera 

had suffered three prior strike convictions, it dismissed all three

for sentencing purposes under People v. Superior Court (Romero)

(1996) 13 Cal.4th 497 and sentenced Rivera to 18 years in state 

prison: the middle term of three years for second degree robbery, 

plus three five-year enhancements for Rivera’s prior serious 

felony convictions pursuant to Penal Code section 667, 

subdivision (a).2 Rivera appealed the judgment, contending the 

trial court erred in imposing three, rather than one, prior serious 

1 Rivera took a laptop computer from a dance studio. The 

owner of the computer followed Rivera outside and confronted 

him. Rivera punched the computer’s owner in the face, knocked 

him to the ground, kicked him and then fled. The police located 

Rivera, recovered the computer and arrested him. 

2 Statutory references are to this code unless otherwise 

stated. 
3

felony enhancements for offenses that had been charged and tried 

together. The People conceded the error, and we vacated Rivera’s 

sentence and remanded the matter to allow the trial court to 

reconsider all lawful sentencing options. (People v. Rivera

(Sept. 11, 2017, B270567) [nonpub. opn.].)

At Rivera’s resentencing hearing the trial court revisited its 

Romero ruling, dismissed only two of Rivera’s three prior strike 

convictions and sentenced Rivera to 15 years in state prison: the 

upper term of five years for second degree robbery, doubled 

pursuant to the three strikes law, plus a consecutive five-year 

enhancement under section 667, subdivision (a)(1). 

In a second appeal Rivera contended the trial court had 

abused its discretion by dismissing only two of his three prior 

strike convictions, arguing his sentence should be reduced to 

10 years. We disagreed, but remanded the matter once again to 

allow the trial court to consider whether to dismiss or strike a 

one-year prior prison term enhancement under section 667.5, 

subdivision (b), that the court had stayed in Rivera’s original 

sentence3 or the five-year prior serious felony enhancement under 

3 As we explained the law in effect prior to the January 1, 

2020 amendment of section 667.5, subdivision (b), which limited 

that enhancement to prior prison terms for sexually violent 

offenses (see Stats. 2019, ch. 590, § 1), “when it originally 

imposed (albeit incorrectly) three prior serious felony 

enhancements, the trial court properly stayed the one-year 

enhancement for the prior prison term Rivera served for those 

convictions. However, if the prison term is attributable to a 

felony for which no prior serious felony enhancement is imposed, 

the section 667.5, subdivision (b), enhancement for that prison 

term must be imposed or stricken. (People v. Langston (2004) 

33 Cal.4th 1237, 1241; citations omitted].) Accordingly, once we 

vacated the three section 667, subdivision (a), enhancements and 
4

then-recent amendments to section 667, subdivision (a)(1), and 

section 1385, effective January 1, 2019 (see Stats. 2018, ch. 1013, 

§§ 1 & 2), which give the court discretion not to impose this 

formerly mandatory enhancement. (People v. Rivera, supra, 

B285951.)

On remand the trial court on March 11, 2019 issued an 

order declining to strike the five-year prior serious felony 

enhancement under section 667, subdivision (a), but striking the 

one-year prior prison term enhancement “in the interests of 

justice as that appears to be consistent with Judge Umhofer’s 

intent.”4 Recognizing somewhat belatedly that in People v. Rocha

(2019) 32 Cal.App.5th 352 our colleagues in Division Four of this 

court had held the defendant has a right to be present with 

counsel at a hearing at which the court decides whether it will 

exercise its discretion to strike a previously mandatory 

sentencing enhancement, on May 23, 2019 the court held a 

sentencing hearing to reconsider whether to strike the 

section 667, subdivision (a), prior serious felony enhancement.5 

The court again declined to strike the enhancement. The 

section 667.5, subdivision (b), prior prison term enhancement was 

not addressed at the May 23, 2019 hearing.

the trial court at resentencing imposed only one of those 

enhancements, the lesser one-year prior prison term 

enhancement was no longer prohibited and could not be stayed.” 

(People v. Rivera, supra, B285951.)

4 Judge Donald Umhofer, who presided at Rivera’s trial and 

previously sentenced him, had retired by the time of the remand.

5 Rivera elected to appear at the hearing without counsel. 
5

DISCUSSION

In October 2019 the Legislature enacted Senate Bill 

No. 136 (Stats. 2019, ch. 590, § 1) amending section 667.5, 

subdivision (b), effective January 1, 2020. The new law limited 

the applicability of that provision’s one-year sentence 

enhancement for prior prison terms to defendants who had 

previously served a prison term for sexually violent offenses as 

defined in Welfare and Institutions Code section 6600, 

subdivision (b). As the Attorney General acknowledges, this 

ameliorative amendment applies to nonfinal judgments on 

appeal. (People v. Petri (2020) 45 Cal.App.5th 82, 94 

[“amendment to section 667.5, subdivision (b),” effective 

January 1, 2020, “applies retroactively to all defendants whose 

judgments are not yet final as of that date”]; see People v. 

Matthews (2020) 47 Cal.App.5th 857, 865; People v. Winn (2020) 

44 Cal.App.5th 859, 872-873; see generally In re Estrada (1965) 

63 Cal.2d 740, 748 [for a nonfinal conviction, “where the 

amendatory statute mitigates punishment and there is no saving 

clause, the rule is that the amendment will operate retroactively 

so that the lighter punishment is imposed”].) 

Rivera and the Attorney General agree the one-year prior 

prison term enhancement based on Rivera’s prior conviction for a 

robbery, previously imposed and stayed by the trial court, must 

be struck from his sentence. Focusing on the May 23, 2019 

sentencing hearing and apparently overlooking the March 11, 

2019 minute order, Rivera in his brief on appeal argued the trial 

court failed to address that enhancement, notwithstanding our 

express direction that it do so. The Attorney General in his 

respondent’s brief explains the enhancement had been struck on 

March 11, 2019, so no further action by the court was necessary 
6

on May 23, 2019.6 We agree and, as suggested by the Attorney 

General, direct the superior court to prepare a new abstract of 

judgment to reflect the correct sentence, including the stricken 

section 667.5, subdivision (b), enhancement. 

DISPOSITION

The judgment is affirmed. The superior court is directed to 

prepare a corrected abstract of judgment that reflects the oneyear prior prison term enhancement under section 667.5, 

subdivision (b), has been struck, and forward it to the 

Department of Corrections and Rehabilitation.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

6 Rivera did not file a reply brief and waived oral argument.