People v. Pena CA2/6

Filed 10/7/24 P. v. Pena CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B334477 (Super. Ct. No. 2011032257) Plaintiff and Respondent, (Ventura County)

v.

RAFAEL ANGEL PEÑA,

Defendant and Appellant.

Rafael Angel Peña appeals the trial court's post-judgment order striking his Penal Code section 667.5, subdivision (b)1 enhancement and resentencing him under section 1172.75. We appointed counsel to represent appellant on appeal. After an examination of the record, counsel filed an opening brief raising no issues and requesting that we follow the procedures set forth in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).

1 All unmarked statutory references are to the Penal Code.

Appellant filed a supplemental brief, in propria persona. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2012, a jury convicted appellant of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a), count 1) and three counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a), counts 2, 3, & 4). The jury found a multiple victim allegation true. (§ 667.61, subd. (e)(4).) Appellant admitted serving a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him to 15 years to life on each count plus one year for the prior prison term, for an aggregate term of 60 years to life plus one year. We affirmed the conviction in a nonpublished opinion. (People v. Peña (Oct. 23, 2014, B246480) [nonpub. opn.].) In 2022, following the passage of Senate Bill 483 (2021- 2022 Sess.), which eliminated enhancements for prior prison terms, appellant’s case was referred to the sentencing court by the Department of Corrections and Rehabilitation. The court appointed counsel for appellant. He filed a resentencing petition requesting the court strike the one-year prior prison term enhancement and modify his sentence on counts 4 and 5 to run concurrently rather than consecutively. Appellant supported his petition with evidence of his good behavior while in custody, including academic achievements, as well as his current health and mobility issues, strong family support, and post-release plans for housing and employment. Prosecutors opposed any change in the sentence other than striking the one-year prior prison term enhancement. The same judge who presided over appellant’s original trial and sentencing heard the petition. The court considered all of