Filed 8 / 16 / 21 P. v. Brooks 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

LEGEND BROOKS,

Defendant and Appellant. 2d Crim. No. B307652 (Super. Ct. No. TA137685) (Los Angeles County)

This is the third appeal from the sentence imposed after Legend Brooks was convicted

, by jury, of assault with a firearm and possession of a firearm by a f elon. (Pen. Code, § § 245, subd. (b), 29800, subd. (a)(1).) 1 While the appeal s were pending, our Legislature amended section 667. 5

. (Stats. 2019, ch. 590. § 1.) As amended, the statute authorizes a one

- year prior prison term enhancement only where the prior term was served for a sexually violent offense. (§ 667.5, subd. (b).) Brooks’

1 All further statutory references are to the Penal Code unless otherwise stated.2

sentence includes a one

- year prior prison term enhancement imposed under the former version of section 667.5

. Bec ause his prior prison term was not for a sexually violent offense, Brooks
contends the matter must be remanded for resentencing

. Respondent concedes a remand is necessary. We agree.

FACTS AND PROCEDURAL HISTORY
Brooks was convicted in 2016 of assault wi th a
firearm and possession of a firearm by a felony. The trial court imposed a sentence of 16 years, 8 months, including a 1

- year prior prison term enhancement under former section 667.5,
sub division (b). We affirmed the conviction, but remanded for

res entencing, so the trial court could exercise its newly

established discretion to impose or strike the firearm use enhancement. ( § §1385, 12022.5, subd. (a) ; People v. Brim, et al. (Oct. 2, 2018, B275782) [non

- pub. opn.].)

The trial court entered a minute order declining to
strike the firearm use enhancement befor e the remittitur issued and outside the presence of the parties or their counsel. We remanded for resentencing at a hearing at which appellant had the right to be present with counsel. ( People v. Brooks (Nov. 18, 2019, B294596) [non

- pub. opn.].) At the resentencing hearing, in July 2020, the trial court again declined to strike the firearm use enhancement. It also left the prior prison term enhancement unchanged.
DISCUSSION

Effective January 1, 2020, Senate Bill No. 136 (2019

- 2020 Reg. Sess.) amended section 667.5, subdivision (b) to
authorize a one

- year prior prison term enhancement only where the prior prison term was served “for a sexually violent3

offense . . . .” ( Stats. 2019, ch. 590. §1.) Appellant’s prio r conviction, for which he served a prior prison term, was for resisting an executive officer. (§69.) This offense no longer qualifies under section 667.5 for the prior prison term
enhancement. The amended statute applies to appellant because the judgment in this case is not yet final. ( People v. Gastelum (2020) 45 Cal.App.5th 757, 772 ( Gastelum ) ; People v. Lopez (2019) 42 Cal.App.5th 337, 341; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 3 06

- 308.)

Appellant is no longer eligible for the one

- year prior prison term enhancement. Because the trial court did not impose
the maximum possible sentence in this case, the matter must be remanded to the trial court for resentencing. ( People v. Buyck s (2018) 5 Cal.5th 857, 893; Gastelum

, supra , 45 Cal.App.5th at pp.
772

- 773.)
DISPOSITION

The judgment on resentencing is reversed. The
matter is remanded to the trial court with directions to strike the
section 667.5 , subdivision (b) enhancement and t o re

- sentence appellant.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.Allen Joseph Webster, Jr., Judge

Superior Court County of Los Angeles

______________________________ Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Se nior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.