People v. Tinajero CA6

Filed 1/27/25 P. v. Tinajero CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051282 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS073186A)

v.

SERAFIN BENJAMIN TINAJERO,

Defendant and Appellant.

In the trial court, Serafin Tinajero requested resentencing because his sentence included an enhancement for serving a prior felony term—a “prison prior”—that is now invalid under Penal Code section 1172.75. (Subsequent undesignated statutory references are to the Penal Code.) While the trial court struck the prison prior, thereby reducing Tinajero’s sentence by one year, it refused to conduct a full resentencing, which, in light of other changes in the sentencing laws, might have reduced Tinajero’s sentence even further. Tinajero contends that the trial court erred in not conducting a full resentencing, and the Attorney General concedes the error. We accept this concession and remand with directions to conduct a full resentencing. As the other matters raised by Tinajero will be considered on remand, we need not address them.

I. BACKGROUND Because the facts concerning Tinajero’s underlying offenses are not relevant to this appeal, we omit them and focus solely on the procedural background. In October 2008, Tinajero pleaded guilty to second-degree robbery, attempted robbery, illegal possession of a concealed weapon, and second-degree burglary. Tinajero also admitted allegations of firearm use during the robbery and attempted robbery, two prior strike convictions, violent felony convictions, and one prison prior. In May 2009, Tinajero was sentenced to 20 years eight months in state prison. In imposing this sentence, the trial court struck one of Tinajero’s strike convictions. However, it sentenced him to the upper term on the robbery count, which was doubled due to the remaining strike, resulting in a 10-year sentence on that count. The court also sentenced Tinajero to one year four months on the attempted robbery count. Finally, the trial court imposed four enhancements: four years for the firearm enhancement on the robbery count; one year four months for the firearm enhancement on the attempted robbery count; three years for the violent felony enhancement; and one year for the prison prior. (As the Attorney General notes, the record does not show any sentence for the concealed weapon and second-degree robbery counts.) In June 2022, in light of Senate Bill No. 483 (2021-2022 Sess.) (Sen. Bill No. 483), Tinajero petitioned for a writ of habeas corpus. He argued that his prison prior was now invalid, and he was entitled to resentencing considering “postconviction factors” and applying “changes in law that reduce sentences or provide for judicial discretion.” Attaching over two dozen certifications for self-help and general education classes as well as for participating in alcoholics anonymous, Tinajero also noted his efforts at self- improvement. In July 2022, the trial court appointed counsel to represent Tinajero, scheduled a sentencing conference, and dismissed Tinajero’s petition in light of the contemplated resentencing. The following July, the court held a resentencing hearing. At the hearing, 2