People v. Smith CA3

Filed 9/9/24 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C099739

Plaintiff and Respondent, (Super. Ct. No. CRF14-0000397)

v.

JIMMY DON SMITH,

Defendant and Appellant.

Defendant Jimmy Don Smith appeals from his October 2023 resentencing for unlawful sexual intercourse and digital penetration. He argues the trial court abused its discretion in failing to dismiss his prior strike and in failing to recalculate his custody credits. We will order recalculation of custody credits and otherwise affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND In May 2014, the victim, who had moderate mental disabilities, lived in her own apartment with assistance. At the time of the incident, a female friend and her children were temporarily staying with her. (People v. Smith (Apr. 18, 2016, C079212) [nonpub. opn.].) The victim was friends with defendant, and he would come over to eat, shower, and watch television. The day of the incident, defendant appeared intoxicated when he arrived at the apartment; he had lubricant with him. The victim initially did not want him to come in, but she eventually relented. She initially hid in a closet, and then defendant followed her to the bathroom. He pushed her down to the floor, digitally penetrated her, and eventually penetrated her with his penis, all against her will. Defendant also propositioned the friend and rubbed her leg. (People v. Smith, supra, C079212.) A jury found defendant guilty of unlawful sexual intercourse (Pen. Code, § 261, subd. (a)(2))1 and digital penetration (§ 289, subd. (a)(1)(A)). In bifurcated proceedings, defendant admitted he had a prior strike and a prior serious felony based on a 2007 conviction for first degree burglary. (§§ 1170.12, 667, subds. (a)-(i), 459.) According to the probation report, defendant burglarized an uninhabited home, and he cooperated with police at the scene. The probation report did not note any weapons. Defendant also admitted six prior prison enhancements, based on separate convictions in 1989, 1990, 1992, 2000, 2007, and 2012. (Former § 667.5, subd. (b).) In exchange for defendant’s plea, one of the prior prison term enhancements was stricken. The trial court originally sentenced defendant to state prison for an aggregate term of 41 years; the details of the original sentence are not relevant here. This court affirmed the judgment on appeal. (People v. Smith, supra, C079212.)