People v. Thornton CA5

Filed 12/26/24 P. v. Thornton CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F083218 Plaintiff and Respondent, (Super. Ct. No. F17905508) v.

MATTHEW DAVID THORNTON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Heather Mardel Jones, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell and Kimberley A. Donohue, Assistant Attorneys General, Catherine Chatman, R. Todd Marshall and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Hill, P. J., Franson, J. and Peña, J.

-ooOoo- This matter is before us on transfer from our Supreme Court for reconsideration in light of People v. Lynch (2024) 16 Cal.5th 730 (Lynch), which settled a division among courts of appeal on the appropriate standard for assessing prejudice in the context of noncompliance with the requirements of Penal Code section 1170, subdivision (b) (1), (2), and (3)1 as modified by Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). In accordance with the direction of the Supreme Court, we have vacated our earlier decision and requested supplemental briefing from the parties. Defendant Matthew David Thornton pled guilty pursuant to a plea agreement to assault by means likely to produce great bodily injury by a state prisoner and admitted he had suffered three prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). However, he admitted no circumstances in aggravation, and none were found true by a jury. The parties agree, as do we, that defendant’s sentence must be vacated and the matter remanded for resentencing in light of Lynch because an upper term sentence was imposed, at least in part, based on an aggravating factor not proved in compliance with section 1170, subdivision (b) and the record contains no clear indication the trial court would have imposed the same sentence if it understood the new scope of its discretion. We vacate defendant’s sentence and remand for full resentencing. In all other respects, the judgment is affirmed. PROCEDURAL SUMMARY On September 21, 2017, the Fresno County District Attorney filed a criminal complaint, charging defendant with assault by means of force likely to produce great bodily injury by a state prisoner (§ 4501, subd. (b); count 2).2 The complaint further