People v. Fuesz CA1/5

Filed 9/23/24 P. v. Fuesz CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A168864 v. JASON RICHARD FUESZ, (Sonoma County Super. Ct. No. Defendant and Appellant. SCR710461-1)

Defendant Jason Richard Fuesz appeals from an order striking his prior prison term enhancement and reducing his sentence by one year pursuant to Penal Code section 1172.75.1 He contends: (1) the trial court abused its discretion by not conducting a full resentencing in light of other revisions to the sentencing laws, and (2) his attorney provided ineffective assistance by not asking the court to do so. Based on the record in this appeal, Fuesz has not established error or ineffective assistance of counsel. We therefore affirm the judgment.2

1 All further statutory references are to the Penal Code. 2 Fuesz filed a related petition for writ of habeas corpus, which presents the same ineffective assistance claim (In re Fuesz (Super. Ct. Sonoma County, 2023, No. A169619) (Case No. A169619)). We deferred ruling on the petition pending consideration of this appeal. We also invited the parties to submit briefs in the habeas corpus proceeding on whether an order to show cause

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I. FACTS AND PROCEDURAL BACKGROUND According to a pre-sentence probation report, Fuesz committed two bank robberies. On September 13, 2017, he entered a Santa Rosa bank with a bandana covering his face, pointed a handgun at a teller, and demanded money. The teller gave him $1,000, and he left the bank. On September 16, 2017, Fuesz entered a different bank in Santa Rosa while wearing a mask, pointed a gun at an employee, and said, “ ‘This is a robbery. Everybody get down.’ ” After pointing a gun at a customer, he pointed it at a teller and ordered, “ ‘Give me the money.’ ” The teller gave Fuesz $5,230, and he left the bank. A. Convictions and Original Sentencing In February 2018, Fuesz was charged with two counts of second degree robbery (§ 211; counts 1 & 3) and two counts of second degree commercial burglary (§ 459; counts 2 & 4). The Information alleged that he personally used a firearm in his commission of counts 1 and 3 (§ 12022.53, subd. (b)) and in his commission of counts 2 and 4, making counts 2 and 4 serious and violent felonies (§ 12022.5, subd. (a)). In addition, the Information alleged that Fuesz had five prior strike convictions (§§ 667, subds. (d)―(e); 1170.12, subds. (b)―(c)), two prior serious felony convictions (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (a)). Fuesz faced a maximum sentence of 31 years if convicted on all counts. Pursuant to a negotiated plea agreement in May 2019, he entered no contest pleas to counts 1 and 3 (robberies) and admitted the personal use