Opinion
D074452
07-01-2020
THE PEOPLE, Plaintiff and Respondent, v. MARLON BEASON, Defendant and Appellant.
Arthur Martin, under Appointment by the Court, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD275033) APPEAL from a judgment of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed in part; remanded in part with instructions. Arthur Martin, under Appointment by the Court, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
Marlon Beason appeals a judgment against him for robbery. He contends the court improperly admitted evidence of a towel and a set of binoculars recovered from his vehicle because those items lack relevance. He further contends the court improperly permitted lay opinion testimony from a detective explaining that defendant's gait was similar to the one of the perpetrator visible in video surveillance of the robbery. Finally, he maintains that the matter must be remanded for resentencing to address changes to Penal Code sections 667, subdivision (a)(1) and 667.5, subdivision (b).
Further statutory reference is to the Penal Code unless otherwise specified.
We agree changes in law now provide the trial court with discretion regarding sentencing enhancements under section 667, subdivision (a) and no longer permit one-year prior prison enhancements under section 667.5, subdivision (b) when the previous crimes were not sexually violent offenses. Accordingly, we will remand with sentencing instructions. In all other respects, we will affirm.
BACKGROUND AND PROCEDURAL FACTS
Around 5:00 a.m. on October 14, 2017, T.T. opened the doors to the gas station convenience store where he worked. Shortly after opening the store, T.T. was stocking the cooler when he heard the door open and saw someone walk in. He turned back to the cooler, then realized the person was standing near him, so he turned around. The customer was holding a red gas can in one hand, and a green rag or towel wrapped in his other hand. When the customer spoke, T.T. did not hear the man, and the man then lifted the towel off his hand to display a gun he was holding and repeated himself: "Give me the money." As T.T. moved toward the register, the perpetrator told him to hurry up. After T.T. gave the robber cash from the register, the robber left with the money, the gun, and the cash.
T.T. called 911, and he offered the operator a description of the robber as a Black male, about six feet two inches tall, between ages 30 and 40 years old, with a big, muscular build, wearing a black jacket and possibly black pants, carrying a gas can and a black gun, possibly a .9 millimeter. The robber's face was covered by a mask, which came down to his chin. The robber dropped the small towel that had covered the gun when he ran out of the store.
At trial, T.T. testified he believed the robber had been waiting to enter the store because T.T. looked before opening the store, and he did not see any lights or vehicles parked in front of the store's doors, and the robber entered so soon after it opened. He also explained that he could only see part of the robber's face, his upper cheekbone and eye area, but he did not see any tattoos on the robber's neck or notice the robber's eye color.
When police responded to the scene, they collected video surveillance from several cameras, as well as the bright green towel that had been wrapped around the robber's hand and which the robber left behind. The towel was tested for DNA, and there was a 91 percent contributor and a nine percent contributor. The information was entered into CODIS, which returned a possible suspect whose DNA matched the 91 percent contributor. When the criminologist compared the DNA from the 91 percent contributor to Beason, he found "it [was] 7.78 times 10 to the 27th times" more likely to match Beason than not—"that would be 778 with 25 zeros," or an "octillion."
On December 19, 2017, police searched Beason's Yukon as part of a coordinated traffic stop to arrest him. From the vehicle, police collected a black drawstring-like bag or satchel with a Harley Davidson motorcycle logo on the outside of it. Detective Javier Padilla recovered a handgun from inside the bag and removed a loaded magazine from the weapon. Once he removed the weapon to render it safe, he left the bag on the seat of the vehicle and left it for another police officer to collect and photograph. There was a bright green towel in the bag with the gun.
Police also recovered from the vehicle a red gas can, which they later determined was not an exact match to the gas can used during the robbery. They also found a pair of binoculars, which were folded small enough to fit in the palm of a person's hand, and a black hoodie sweatshirt.
Police next searched Beason's residence. There, they saw green towels similar to the one recovered at the crime scene, but they did not collect them because police were searching for clothing and firearms. Police collected black pants similar to those the robbery suspect wore in the video surveillance, and they found a backpack that contained a magazine and ammunition for a .40 caliber weapon, the same style of gun recovered from Beason's vehicle. Police looked for low-quarter dark or gray shoes, with a rubber covering over the toe, like ones the robbery suspect wore, and they recovered a similar pair from Beason's residence. They also recovered motorcycle gloves, but those did not match the motorcycle gloves worn by the robber in the video surveillance.
Detective Padilla interacted with Beason on December 19, 2017. At trial, he described Beason as six foot two inches to six foot four inches, between 250 and 290 pounds, and as having a "large build, a large frame," "a big person in height," "not a thin person," but also not fat, more "muscular, thick build." He acknowledged that Beason has a tattoo on his neck of three stars, with the largest one closer to the ear, then descending in size as they go down the neck. He told the jury he watched the store surveillance video 20 to 40 times. He did not see any distinct tattoos on the suspect in the video surveillance. He explained that sometimes surveillance video does not capture something as distinct as a tattoo, just like the videos do not always capture the exact letters on license plates. He pointed out in a still from the video that there was something in the area of the neck.
Detective Padilla testified he had an opportunity to watch Beason walk during their interactions. He explained that when the suspect in the robbery video took footsteps forward, his knees rotated inward a bit, and he noticed Beason did the same thing when Beason walked. He compared Beason's physical appearance to the physical characteristics of the person on video. He also noticed that the robbery suspect's profile and his image running from the store showed the hip and buttocks area rising a bit, which was also similar to Beason. He pointed this out on the video.
An investigative technician for the San Diego County District Attorney testified about the still shots he created from the surveillance video. He said the video had low pixilation, so details were not always visible or readable. He explained that he selected images that best displayed the robber's left neck area, but even after using extreme settings, nothing noteworthy popped out to him in the perpetrator's neck area.
The State charged Beason with four felony counts: robbery (§ 211; count 1) with a gun use enhancement (§ 12022.53, subd. (b)), possession of two different firearms by a person previously convicted of a felony (§ 29800, subd. (a)(1); counts 2 and 3), and possession of ammunition by a person prohibited from possessing a firearm (§ 30305, subd. (a)(1); count 4).
The amended information alleged probation denial priors (§ 1203, subd. (e)(4)), three prison priors (§ 667.5, subd. (b) & 668), and two serious felony priors (§§ 667, subd. (a)(1), 668, & 1192.7, subd. (c)), which were also alleged to be strike priors (§§ 667, subds. (b)-(i), 668; 1170.12).
Beason pleaded guilty to counts 2, 3, and 4. He waived his right to jury trial on the prior allegations, which were bifurcated.
The jury found Beason guilty of robbery (§ 211), but it found the gun use allegation not true (see § 12022.53, subd. (b)). The court then found the allegations regarding priors to be true.
The court imposed a three strikes sentence of 25 years to life on count 1 two years, doubled to four, because of the strike prior on the second count, concurrent terms of two years for counts 3 and 4, two years for two prison priors (§§ 667.5, subd. (b) & 668), and ten years for two serious felony priors (§§ 667, subd. (a)(1), 668, & 1192.7). The total term imposed was 25 years to life plus 16 years.
Beason timely appealed.
DISCUSSION
A. Evidentiary Objections to Admission of Towel and Binoculars Taken from Vehicle
Beason argues the court improperly admitted evidence, causing him prejudice. He maintains that the admission of the bright green towel and the binoculars were improper because they lacked relevance.
Only relevant evidence is admissible. (Evid. Code, § 350; People v. Babbitt (1988) 45 Cal.3d 660, 681.) Evidence Code section 210 defines relevant evidence as that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Evidence is relevant if it tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. (People v. Daniels (1991) 52 Cal.3d 815, 856 (Daniels).) A trial court has broad discretion to determine the relevance of evidence. (Babbitt, at p. 681.) We review the trial court's decision on admitting evidence for an abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 58; People v. Hall (2010) 187 Cal.App.4th 282, 294.)
We do not believe the court abused its discretion in admitting either item. The robber's identity was the main issue in this case. Though Beason did not identify a different suspect, he did argue he was not the robber. The defense attorney pointed out that owning a bright green towel would not by itself establish identity, and she expressed concern that a jury would speculate that just because the defendant owned a green towel, the same color as the one found at the scene, the defendant must be the robber. However, there was some probative value in the similarities between the towels and how they were used. The towel in Beason's vehicle was wrapped around the gun contained in the satchel in the center console of his vehicle. During the robbery, the suspect similarly held the gun wrapped in a towel. The prosecutor explained that carrying a gun in that way is not common, proper, or legal. Not only was the gun protected in the same manner, by using the same type of material in the same way, but it also contributed to preventing of DNA from coming into contact with the weapon, both in the vehicle and on the weapon used during the robbery. The inclusion of the towel found in the vehicle did not abuse discretion because it was relevant, as it tended to show, by reasonable inference, material facts. (See Evid. Code, § 210; Daniels, supra, 52 Cal.3d at p. 856.)
In his opening brief, Beason implies that the towel from the vehicle was improperly admitted because "the provenance of the towel was ambiguous." Detective Padilla testified he saw the butt of the gun in the satchel and removed it to secure it, but he did not notice or look for anything else in the bag at the time. The items taken from the defendant's vehicle were collected and placed in paper bags, secured in a police vehicle trunk, taken to headquarters, and photographed. Items photographed together were found together, including the satchel, the green towel, and the handgun. Although the detective did not see the towel in the satchel with the gun when he removed the gun, he later learned it was recovered from inside the same satchel.
When the court admitted the binoculars that were recovered from Beason's vehicle, defense counsel questioned their relevance. She noted the binoculars were recovered a couple months after the robbery, were not illegal to possess, and were useful for legitimate purposes, including sporting events. She contended their existence was not relevant because it did not connect the vehicle to the scene of the robbery, and there was no evidence that the store was cased before it was robbed. There was, however, evidence the robbery was planned because the perpetrator entered the market moments after it opened for the day, carrying an empty gas can as a ruse. The binoculars, taken in conjunction with other items in the vehicle, including the gun (whether it is considered wrapped in a towel or not), and a black hoodie sweatshirt, tends to establish the defendant carries with him tools consistent with those of the perpetrator here. As to the issue of whether the introduction of binoculars, which are not illegal to own or carry, caused any prejudice (Evid. Code, § 352), as the trial court noted, the defense could point out lawful uses for binoculars on cross-examination. Thus, their probative value outweighed any undue prejudice. (See ibid.) We cannot say that admitting this evidence was an abuse of discretion.
B. Opinion Testimony Regarding Defendant's Gait
Beason argues the admission of testimony comparing the gait of the perpetrator in the surveillance video to Beason's was improper lay opinion and thus inadmissible. Lay witness testimony is admissible if it is rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800.) Admission of lay witness testimony falls within a court's discretion (People v. Bradley (2012) 208 Cal.App.4th 64, 83), and "Court of Appeal decisions have long upheld admission of testimony identifying defendants in surveillance footage or photographs." (People v. Leon (2015) 61 Cal.4th 569, 601 (Leon).)
"[L]ay opinion testimony concerning the identity of a robber portrayed in a surveillance camera photo of a robbery is admissible where the witness has personal knowledge of the defendant's appearance at or before the time the photo was taken and his testimony aids the trier of fact in determining the crucial identity issue." (People v. Ingle (1986) 178 Cal.App.3d 505, 513 (Ingle).) "Where the photo is unclear, or the defendant's appearance has changed between the time the crime occurred and the time of trial, or where for any reason the surveillance photo is not conclusive on the identity issue, the opinion testimony of those persons having knowledge based upon their own perceptions (Evid. Code, § 800, subd. (a)) of defendant's appearance at or before the time the crime occurred is admissible on the issue of identity, and such evidence does not usurp or improperly invade the province of the trier of fact." (Id. at p. 513.)
There are two requirements for lay opinions regarding identification from surveillance video: (1) the witness must have personal knowledge of the defendant's appearance; and (2) the testimony must aid in determining a crucial identity issue. (People v. Mixon (1982) 129 Cal.App.3d 118, 128 (Mixon).) However, personal knowledge of a defendant's appearance does not have to be based on contact occurring before the crime; it can be based on contact with the defendant around the time of the crime. (Leon, supra, 61 Cal.4th at pp. 600-601 [familiar with defendant beginning at time of arrest for target crime]; Ingle, supra, 178 Cal.App.3d at p. 514 [permitting victim's opinion testimony that the person portrayed as the robber was the defendant].) Questions about the extent of a witness's familiarity with the defendant's appearance go to the weight of the testimony, not its admissibility. (Leon, at p. 601.)
We review the admission of lay opinion testimony regarding the identity of a person on video under an abuse of discretion standard. (Leon, supra, 61 Cal.4th at p. 600.) We will not disturb the decision "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We are not persuaded that expert testimony from a physical therapist or kinesiologist is required to describe how a person walks. For example, in Mixon, supra, 129 Cal.App.3d at p. 131, and People v. Perry (1976) 60 Cal.App.3d 608, 613, the courts permitted testimony by police officers who were familiar with the defendants prior to the crimes. And in Ingle, the court permitted testimony from a lay witness, the victim, who viewed the defendant's physical features during the robbery. (Ingle, supra, 178 Cal.App.3d at p. 513.) In Ingle the court explained the testimony about identity did not invade the province of the trier of fact. (Ibid.)
Notably, even Beason comments in his opening brief that if "a lay witness pointed out distinct similarities in the way Beason and the robber walked, there could be no objection." Detective Padilla's testimony was offered as lay opinion, not as expert testimony, on this point.
Although the detective here did not know Beason before the arrest for robbery, he did observe Beason in person within a couple months of the crime. Detective Padilla's testimony about Beason's gait occurred in the context of a broader discussion of Beason's physical appearance and how that compared to the robber's physical appearance. He did not claim any expertise in examining a person's gait; he merely described what he observed. This testimony was helpful because his familiarity with Beason's features could aid in identifying the subject in the surveillance video. Additionally, the surveillance footage was, as the defense attorney described, grainy and jerky; thus, witness testimony could aid the jury as to the identity of the robber.
Moreover, the court instructed the jury that it was not required to accept opinion testimony, and that it could give opinion testimony the weight to which it felt the opinion was entitled. (CALCRIM No. 226; CALCRIM No. 333.)
Beason argues the inclusion of this testimony was prejudicially erroneous because the prosecutor encouraged the jury to use the testimony to overcome reasonable doubt. Beason further argues the significance of the testimony is inferred from a jury question; jurors asked, "Are we allowed to consider our own visualization/observation of Mr. Beason from inside/outside the courtroom (example, in the hallway) in our discussion." When the attorneys appeared the next morning, the court explained that it believed the jury had a verdict. Nevertheless, the court sent its response to the jury, commenting it would be speculative to know what visualization or observation the jury was referencing, and noting the jury could ask further questions. The court's written response directed the jury to "[p]lease see CALCRIM 222[,]" which tells jurors they "must disregard anything [they] saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses." (See CALCRIM No. 222.) Shortly thereafter, the jury returned its guilty verdict for robbery and found the allegation that Beason personally and intentionally used a handgun in the commission of the robbery to be untrue.
Beason argues there is no way to know whether the jurors wanted to use their own observations of Beason to confirm or refute Detective Padilla's observation, but the question suggests the jury was considering this testimony, making it reasonably likely at least one juror relied on the detective's opinion. We disagree.
Although the jury indicated it reached a verdict before the court sent its answer to their question, it had an opportunity to review the court's response to its question before presenting the verdict to the court. Thus, we cannot read into this exchange the foundation for the jury's ultimate guilty verdict. Even were we to conclude there was error in admitting this testimony, we would nonetheless conclude any error was harmless, as we discuss post.
C. Harmless Error
Beason contends the cumulative effect of the asserted evidentiary errors violated his federal and state constitutional rights to due process. We have rejected all Beason's claimed errors except those involving sentencing, which we address post, and which did not render the trial unfair. Because the evidentiary ruling were not erroneous, the cumulative error argument necessarily fails. (People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of error when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].) Even were evidence of the towel, the binoculars, and the testimony about Beason's gait improperly admitted, their admission was not prejudicial.
We test for prejudice under the People v. Watson (1956) 46 Cal.2d 818 (Watson) harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under this test, a judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (Watson, at p. 836.) Additionally, when there are multiple trial errors, though any one of them may be "independently harmless, [collectively they] may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 844-845.) When addressing cumulative error, "the litmus test is whether [a] defendant received due process and a fair trial." (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Under this standard, the cumulative errors are prejudicial if it cannot be established beyond a reasonable doubt that the error had no effect on the jury verdict. (Chapman v. Cal. (1967) 386 U.S. 18, 24 (Chapman).) Under either standard, we would conclude any of the alleged errors or their cumulative effect was harmless.
The admission of the towel from the vehicle, the binoculars, and the testimony about Beason's mannerisms as he walks neither individually nor cumulatively rise to the level of prejudicial error. Excluding the towel and binoculars recovered from the vehicle and the testimony about Beason's gait either individually or collectively leaves ample evidence connecting Beason to the crime scene.
Immediately following the robbery, the victim described the robber as a Black man who stood about six feet two inches tall with a "bigger build." He told the 911 operator the robber was between 30 and 40 years old; had a big, muscular build; was wearing a black jacket and possibly black pants; brought in a gas can with him; and had a gun. In addition to matching the physical description provided by the victim to 911 immediately following the robbery and the victim's description of the perpetrator during trial, the robber on video surveillance matched the description and matched the defendant present in court. The video also showed the robber holding a towel like the one recovered at the scene and containing DNA that matched Beason's, and the towel dropping from the robber's pocket as he left the store.
The defense argued in part that because the defendant's neck tattoo was not readily apparent in the video surveillance or from images taken from the video, it could not have been the defendant on the video. However, the prosecution offered evidence that video surveillance may not capture a tattoo and that the victim had a tattoo covering his entire forearm from his elbow to his wrist, which was not covered but also not readily apparent on the video surveillance. The prosecution argued in closing that the video pixilation simply distorted the tattoo, which was present on the robber in the video.
Police recovered from Beason's vehicle a loaded handgun and an empty gas can. And they found shoes and a pair of black pants in Beason's home, which were similar to what the robber wore at the time of the crime. Additionally, although the gloves police recovered from Beason's home did not match the gloves in the video surveillance, both sets of gloves were motorcycle gloves. Finally, the jury viewed the video surveillance of the robbery, so it could draw comparisons to the defendant at trial.
The totality of the unchallenged evidence, recognizing in particular the significance of Beason's DNA matching DNA on the towel recovered from the crime scene, demonstrates beyond a reasonable doubt that the removal of the evidence complained of would not have altered the verdict. (See Chapman, supra, 386 U.S. at p. 24.)
Looking at the evidence challenged individually, our conclusion is the same; its inclusion did not prejudice Beason. Had the jury never heard the evidence of the towel or binoculars recovered from his vehicle, it is not reasonably probable the outcome would have been different. (See Watson, supra, 46 Cal.2d at p. 836.) Likewise had the jury never heard testimony from Detective Padilla about Beason's gait, it is not reasonably probable the outcome would have been different. Beason matched the physical description of the perpetrator; his DNA was found on the towel the perpetrator left at the scene of the crime; and Beason carried with him in his vehicle items similar to those used in the robbery and common to those used in crimes: a handgun, a dark hoodie, and a gas can. Moreover, the jury members had the opportunity to compare what they had observed of Beason themselves while court was in session and could draw their own conclusions about whether Beason was the perpetrator in the video.
Because it is not reasonably probable the exclusion of the detective's testimony, the towel from the vehicle, or the binoculars individually would have resulted in a more favorable outcome for Beason, any single alleged error was harmless. (See Watson, supra, 46 Cal.2d at p. 836.) And because there is no reasonable doubt that their collective exclusion would not have changed the outcome, there is likewise no prejudice under Chapman.
D. Sentencing Enhancements Under Section 667, Subdivision (a)
Beason received two five-year enhancements, each for a prior conviction of a serious felony. At the time of sentencing, the trial court lacked jurisdiction to strike a prior serious felony conviction in connection with the five-year enhancement under section 667, subdivision (a)(1). (See People v. Valencia (1989) 207 Cal.App.3d 1042, 1045-1047.) Section 667 required the court to impose the enhancement under section 1385, which did "not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385, subd. (b).) However, Senate Bill No. 1393, which became effective January 1, 2019, eliminated the mandatory imposition of five-year terms for serious prior felony convictions. (People v. Garcia (2018) 28 Cal.App.5th 961, 972.) The bill applies retroactively to Beason, whose judgment was not yet final when the new law became effective. (See People v. Brown (2012) 54 Cal.4th 314, 323; see also Garcia, at p. 972.)
Beason and the Attorney General agree that it is unclear if the trial court would have stricken the serious felony enhancements if it had discretion to do so at the time. Accordingly, we will remand for resentencing, so the court may consider its discretion.
E. Sentence Enhancements Under Section 667.5, Subdivision (b)
Beason's sentence includes two one-year enhancement terms under section 667.5, subdivision (b), each based on prior convictions. When Beason was sentenced, the court had discretion to impose an additional one-year term for each separate prior prison term Beason had served, because Beason had not remained free of prison custody for at least five years before committing the current offense. (Former § 667.5, subd. (b); see People v. Bradley (1998) 64 Cal.App.4th 386, 392-396.)
On October 8, 2019, the governor signed Senate Bill No. 136, which became effective January 1, 2020. (People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature generally becomes effective on January 1 of the following year].) Prior to January 1, 2020, trial courts had discretion to strike a prior prison sentencing enhancement under former section 1385, subdivision (a). (People v. Bradley, supra, 64 Cal.App.4th at pp. 392-395; former § 667.5, subd. (b).) However, under the new law, to qualify for the one-year enhancement, the prior prison sentence must be for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1; Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a); Camba, at p. 865.)
When the Legislature amends a statute to reduce the punishment, "[t]he amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (In re Estrada (1965) 63 Cal.2d 740, 745.) Under this Estrada rule, " 'we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195-1196.) This rule applies to amendments that reduce penalties for enhancements or allow a court to strike them. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682.) A judgment is not final in this context as long as courts may still provide a remedy on direct review. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [judgment not final during period in which appellant can seek certiorari in United States Supreme Court after California Supreme Court denies review]; In re Pine (1977) 66 Cal.App.3d 593, 594.)
None of the prison priors found true by the trial court were sexually violent offenses. Moreover, the judgment in the matter is not final, as it is before us on direct appeal. Thus, pursuant to the amended law, we will remand the matter and direct the trial court to strike the one-year section 667.5, subdivision (b) prison prior enhancements. (See § 1260 [appellate court power to reduce punishment imposed].)
DISPOSITION
We remand the matter for resentencing, so the trial court can consider its discretion in sentencing under section 667, subdivision (a)(1) and strike the enhancements imposed under section 667.5, subdivision (b). The court is directed to amend the abstract of judgment to reflect modification and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.