People v. McBath CA4/3

Filed 1/30/25 P. v. McBath CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G063649

v. (Super. Ct. No. 94WF1546)

JOSEPH RAY MCBATH, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Reversed and remanded with directions. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General,

Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent. * * * * THE COURT: Defendant Joseph Ray McBath appeals the trial court’s denial of his petition to recall his sentence and resentence him, pursuant to Penal Code section 1172.75, subdivision (a).1 Defendant argues he is entitled to be resentenced on his now invalid section 667.5, subdivision (b) prior prison term enhancement. The Attorney General argues defendant is not entitled to resentencing because the trial court struck the section 667.5 enhancement. We agree with defendant and reverse and remand for resentencing. PROCEDURAL HISTORY In 1996, a jury convicted defendant of misdemeanor vandalism as a lesser included offense of residential burglary (§ 594; count 1); kidnaping (§ 207, subd. (a); count 2); making a criminal threat (§ 422; count 3); and receiving stolen property (§ 496, subd. (a); count 4). The trial court sentenced defendant to a total term of 30 years to life plus eight months, consisting of 25 years to life on count 2; a concurrent term of two years on count 3; eight months on count 4; and 5 years for the serious felony prior conviction. The court stayed the sentence on count 1. The court imposed and struck defendant’s section 667.5, subdivision (b) prison prior for purposes of sentencing only. In 2023, defendant filed a petition for recall of sentence pursuant to sections 1172.75 and declared in his petition that his “name and case