People v. Lemos CA2/1

Filed 9/23/24 P. v. Lemos CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B332919

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA045510) v.

DAVID ANTHONY LEMOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David W. Stuart, Judge. Reversed. The Law Office of CT Turney-Lewis and CT Turney for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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David Anthony Lemos appeals from an order denying his petition for dismissal under Penal Code section 1203.41.1 Because the court erred in finding that Lemos was ineligible for relief, we agree with Lemos and the Attorney General that it failed to properly exercise its discretion, and reverse. FACTUAL AND PROCEDURAL SUMMARY In April 2005, pursuant to a plea agreement, Lemos pleaded no contest to one count of making a criminal threat. (Former § 422; Stats. 1998, ch. 825, § 3.) He also admitted a gang allegation under section 182.66, subdivision (b), and admitted that he personally used a handgun in the commission of the crime. (Former § 12022.5, subd. (a).) The court accepted the plea and sentenced Lemos to prison for 9 years 4 months. In August 2011, the parties informed the court of an error in the calculation of Lemos’s sentence, which appeared to require that his sentence be extended by five years. To avoid that result, the parties reworked the plea agreement to arrive at the 9 year 4 month sentence they had agreed upon. Thus, in August 2011, Lemos pleaded no contest to (1) one count of making a criminal threat (former § 422); (2) one count of carrying a concealed weapon while being an active participant in a criminal street gang (former § 12025, subd. (b)(3); Stats 1999, ch. 571, § 2); and (3) one count of unlawfully carrying a loaded firearm in public (former § 12031; Stats 1999, ch. 571,