People v. Smith CA3

Filed 11/25/24 P. v. Smith CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C095199

Plaintiff and Respondent, (Super. Ct. No. 19FE017054)

v. [OPINION ON TRANSFER] JOSE CARL SMITH,

Defendant and Appellant.

A jury found defendant Jose Carl Smith guilty of, among other offenses, 18 counts of first degree burglary and one robbery count. The trial court sentenced defendant applying the upper term for the robbery count and separate terms for each of the burglary counts. On appeal, defendant argues: (1) the trial court’s imposition of the upper term sentence is no longer valid in light of the changes made to Penal Code1 section 1170 by

1 Further undesignated statutory references are to the Penal Code.

1

Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567); (2) the trial court should have stayed the sentences related to five of the burglary counts under section 654; and (3) the trial court erred when it denied his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike a prior conviction. In light of our Supreme Court’s decision in People v. Lynch (2024) 16 Cal.5th 730, we remand for a full resentencing. FACTUAL AND PROCEDURAL BACKGROUND The prosecution charged defendant with 18 counts of first degree burglary, along with two counts of attempted robbery, and one count each of robbery, assault with force likely to produce great bodily injury, child endangerment, evading the police, possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon. The prosecution also alleged defendant had a prior strike conviction for burglary from 2004. At trial, the prosecution introduced evidence in the form of surveillance videos from neighboring homes and data obtained from defendant’s cell phone to establish the sequence of events. As relevant to the issues in this appeal, there was evidence concerning the burglary of two homes, one occupied by victim J.B. and the other by victim V.M. Defendant burglarized J.B.’s house on February 8 and 10, 2019. Global positioning system (GPS) data indicated defendant’s cell phone was near the house on the evening of February 8, 2019. Defendant texted a codefendant about items stolen from J.B.’s house shortly thereafter. On February 9, 2019, GPS data again located defendant’s cell phone near J.B.’s house, but no entry into the house was alleged. After midnight on February 10, 2019, defendant texted a codefendant with the address of J.B.’s house. GPS data from defendant’s cell phone indicated the phone was moving toward J.B.’s house around that time. The cell phone stayed in the area for over an hour, then moved away.