People v. Gonsalves CA1/2

Filed 9/24/24 P. v. Gonsalves CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A167441 v. TODD WILLIAM GONSALVES, (Humboldt County Super. Ct. No. CR2101527) Defendant and Appellant.

Defendant Todd William Gonsalves appeals from a February 2023 resentencing hearing at which the trial court imposed a four-year prison sentence. Gonsalves argues the court was unaware of the limits placed on its sentencing discretion by amendments made to Penal Code section 1170 after Gonsalves’s initial sentencing hearing in November 2021. We agree. We reverse and remand for the trial court to hold a new sentencing hearing. FACTUAL AND PROCEDURAL BACKGROUND1 In May 2021, Gonsalves confronted his girlfriend K.B. in a post office parking lot in Humboldt, flashed a gun in his waistband, and demanded that

1 All undesignated statutory references are to the Penal Code. We incorporate by reference our unpublished opinion in Gonsalves’s prior appeal, People v. Gonsalves (Nov. 15, 2022, A164048).

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she give him money or he would shoot her, her ex-sister-in-law, and her children. At trial, K.B. significantly altered her account and said Gonsalves did not have a gun, did not threaten to kill her, and only threatened to end their relationship if she did not stop spending time with her ex-sister-in-law. The jury ultimately convicted Gonsalves of attempting to make a criminal threat, possessing a firearm as a felon, and violating a protective order. Following the verdict, Gonsalves admitted he had suffered two prior strikes. Gonsalves was not, however, advised of his constitutional rights prior to his admission, including his right to a trial by jury as to the prior convictions, to confront and cross-examine witnesses, and his privilege against self-incrimination; Gonsalves, thus, did not expressly waive those rights before making his admission. At the original sentencing hearing in November 2021, the trial court dismissed one of Gonsalves’s prior strike convictions and found that the aggravating factors and mitigating factors were “evenly balanced.” The court also stated there were “mitigating circumstances with regards to what occurred . . . with regard to the trial,” and referenced K.B.’s testimony and a letter she submitted, both of which were to Gonsalves’s benefit and “result[ed] in midterms.” The court then sentenced Gonsalves to four years in prison, comprised of the middle term of two years for possession of a firearm, doubled to four years due to the prior strike; a concurrent upper term of 18 months for attempted criminal threats, doubled to three years due to the prior strike; and a one-year term for violation of a protective order which was deemed served by his presentence credits. We reversed. (People v. Gonsalves, supra, A164048.) We held that the trial court erred when it accepted Gonsalves’s two prior strike convictions