Modification: People v. Chubbuck

THE PEOPLE,

Plaintiff and Respondent,

v.

JHYY DEMOND CHUBBUCK,

Defendant and Appellant.

No. E071274

(Super.Ct.No. FVI18001366)

California Courts of Appeal

Fourth Appellate District

Division Two

Filed December 11, 2019

THE COURT:

The Petition for rehearing filed by appellant on November 27, 2019 is denied. The opinion filed in this matter on November 12, 2019, is modified as follows:

1. On Page 11, in line 3 of the second full paragraph, change People v. Van Orden (2017) 9 Cal.App.5th 1285-1286 to People v. Van Orden (2017) 9 Cal.App.5th 1277, 1285-1286.

2. On Page 17, after the first full paragraph and before IV. DISPOSITION, add the following Section D:

D. Defendant's Prison Prior Enhancement Should Be Stricken

Following issuance of our original opinion in this appeal on November 27, 2019, defendant petitioned for rehearing, claiming that his one-year sentencing enhancement should be stricken in light of recent amendments to section 667.5, subdivision (b) embodied in Senate Bill No. 136. The amendment becomes effective January 1, 2020, and precludes the imposition of one-year sentence enhancements for a prior prison term unless the prior offense was sexually violent in nature. (§ 667.5, subd. (b).) In their answer to defendant's petition, The People concede that the prior conviction underlying defendant's sentencing enhancement would not qualify for an enhancement under the amended statute. The People further concede that it is highly unlikely the defendant's judgment will be final by the time the amended statute takes effect on January 1, 2020.

We agree that it is highly unlikely that defendant's judgment will be final by January 1, 2020, because he would have to exhaust all of his appeal rights by that date. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973.) As such, we remand the matter to the trial court for resentencing in light of Senate Bill No. 136, after January 1, 2020.

3. On Page 17, under IV. DISPOSITION, strike the entire first sentence and replace it with: The cause is remanded to the trial court with directions to resentence defendant after January 1, 2020, in light of section 667.5, subdivision (b), as amended by Senate Bill No. 136 effective January 1, 2020. The trial court is further directed to correctly reflect the defendant's name as "Jhyy Demond Chubbuck" in any subsequent abstract of judgment.

Except for these modifications, the opinion remains unchanged. The modifications effect a change in the judgment.

CERTIFIED FOR PUBLICATION

FIELDS, J.

We concur:

RAMIREZ, P. J.

MILLER, J.