People v. Fleming CA2/5

Filed 7/24/24 P. v. Fleming CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B324947

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA363372) v.

RANDY FLEMING,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kevin P. Stennis, Judge. Reversed and remanded with directions. Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy

Attorney General, and Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.

2

This appeal arises from an order denying defendant and appellant Randy Fleming’s (defendant’s) petition for resentencing under Health and Safety Code section 11361.8, which was enacted as part of the Control, Regulate, and Tax Adult Use of Marijuana Act (Proposition 64).1 The Attorney General correctly concedes the trial court erred by relying solely on the argument of counsel, and no evidence, when finding that granting the petition would pose an unreasonable risk of danger to public safety. The parties disagree, however, about what our disposition of the appeal should be in light of the error. That is the dispute we resolve.

I. BACKGROUND In 2010, defendant was charged with a single count of possession of marijuana for sale. The information alleged the offense was gang related and it also alleged defendant had numerous prior convictions. A trial jury convicted defendant (but found the gang allegation not true). Prior to sentencing, defendant moved the trial court to strike all but one of his prior strike offenses—some 28 of them. At the hearing, defendant admitted all the prior strike convictions, the trial court denied defendant’s motion to strike any of them, and the court sentenced defendant to 25 years to life in prison. This court affirmed his conviction and sentence. (People v. Fleming (May 28, 2013, B241293) [nonpub. opn.].)