People v. Gomez CA2/7

Filed 11/5/24 P. v. Gomez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B334483

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA137290) v.

ALFREDO GOMEZ,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Reversed with directions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

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Alfredo Gomez appeals the trial court’s order resentencing him under Senate Bill No. 483 (2021-2022 Reg. Sess., Stats. 2021, ch. 728, § 3) (SB 483), codified as Penal Code section 1172.75 (formerly section 1171.1).1 He contends that, when the court resentenced him, he was entitled to a full resentencing, and that the court should have exercised its discretion under Senate Bill No. 1393 (2017–2018 Reg. Sess., Stats. 2018, ch. 1013, §§ 1–2) (SB 1393) to determine whether to strike Gomez’s two five-year serious felony enhancements (§ 667, subdivision (a)(1)). The People concede the errors. We agree and remand for a full resentencing in accordance with section 1172.75, subdivision (d). FACTUAL AND PROCEDURAL BACKGROUND A jury convicted Gomez in 2015 of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and leaving the scene of an automobile accident resulting in injury (Veh. Code, § 20001, subd. (b)(1)). Gomez admitted he had two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), two prior “strike” convictions within the meaning of the “Three Strikes” law (Pen. Code, § 1170.12), and two prior prison terms (Pen. Code, § 667.5, subd. (b)). The court found true four circumstances in aggravation. The trial court struck one of Gomez’s prior strike convictions and sentenced Gomez as a second-strike offender to a total state prison term of 21 years four months. The sentence consisted of the upper term of four years for the aggravated