Filed 6/11/21 P. v. Gonzalez CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078126
Plaintiff and Respondent,
v. (Super. Ct. No. INF1402485)
CHRISTOPHER GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Dale R. Wells, Judge, and Randall D. White, retired judge of Riverside
Superior Court (assigned by the Chief Justice pursuant to art. VI, § 6 of the
Cal. Const.). Sentence vacated and the case remanded for resentencing with
directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
Christopher Gonzalez was convicted by a jury of vehicle theft (Veh.
Code, § 10851, subd. (a)), evading police (Veh. Code, § 2800.2), and street
terrorism (Pen. Code,1 § 186.22, subd. (a)). The trial court found true two
serious felony prior convictions (§ 667, subd. (a)(1)), two strike priors (§ 667,
subds. (b)-(i)), and one prison prior (§ 667.5, subd. (b)). Gonzalez was
sentenced to a term of 25 years-to-life plus a 15-year determinate term.
Gonzalez appealed, and this court affirmed the convictions but reversed
the true finding on one of the strike priors. This court vacated the sentence
and remanded to permit a retrial on the strike prior, to permit Gonzalez to
move to strike the serious felony priors, and to resentence Gonzalez
accordingly. (People v. Gonzalez (June 10, 2019, D075363) [nonpub. opn.].)
On remand, the trial court retried the strike prior and found it true.
Thereafter the court did not formally resentence Gonzalez, although the court
amended the abstract of judgment and recalculated custody credits.
Gonzalez again appealed.
Gonzalez contends, and the Attorney General agrees, that the court
erred in failing to formally resentence; that the custody credits were
improperly calculated; that the abstract of judgment should be amended and
that he is entitled to the retroactive application of Senate Bill No. 136 to
invalidate the one-year prison prior. After reviewing the record, we agree
with the parties. The case must again be remanded for proper sentencing.
1 All further statutory references are to the Penal Code unless otherwise
specified.
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DISCUSSION
The trial court’s failure to actually resentence Gonzalez was error and
resulted in an unauthorized sentence. (People v. Crabtree (2009) 169
Cal.App.4th 1293, 1327.) On remand, the trial court must address the
striking of the prison prior, the recalculation of custody credits, and it must
impose a sentence in the case. The abstract of judgment must be amended to
reflect the newly imposed sentence.
Gonzalez contends he is entitled to the retroactive application of Senate
Bill No. 136, which invalidated the one-year enhancements for prison priors
such as is applicable in this case. (People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 306-308.) The Attorney General properly concedes the new
legislation must apply in this case. On remand the trial court is directed to
strike the one-year term under section 667.5, subdivision (b) and to modify
the sentence accordingly.
DISPOSITION
The sentence is vacated, and the case is remanded to the Superior
Court with directions to resentence Gonzalez consistent with the views
expressed in this opinion. The court shall amend the abstract of judgment as
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appropriate and forward an amended abstract to the Department of
Corrections and Rehabilitation.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
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