People v. Degante CA4/3

Filed 3/10/25 P. v. Degante 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G063563

v. (Super. Ct. No. 16WF008)

JESSE DEGANTE, 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. Sylvia W. Beckham, 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, A. Natasha Cortina and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

Jesse Degante appeals from the denial of his petition for recall and resentencing pursuant to Penal Code sections 1172.7 and 1172.75.1 Degante contends the trial court erred in concluding he was not entitled to relief because his prior prison term enhancement under former section 667.5, subdivision (b) (section 667.5(b)) was stayed at the time of sentencing and declined to conduct resentencing based on the reasoning in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169 (Rhodius). We reverse and remand for resentencing. PROCEDURAL HISTORY In 2016, as relevant to this appeal, a jury found Degante guilty of attempted robbery (§§ 664, subd. (a), 211, 212.5, subd. (c)) and found true the allegation Degante personally used a deadly weapon (§ 12022, subd. (b)(1)). In a bifurcated trial, the trial court found true a 2012 prior serious felony enhancement (§ 667, subd. (a)(1)); a 2013 prior serious felony enhancement (§ 667, subd. (a)(1)); and a prior prison term enhancement for a 2013 gang participation conviction (former § 667.5(b)). Degante was sentenced to an aggregate term of 15 years. The trial court imposed the middle term of two years for the attempted robbery, doubled pursuant to the Three Strikes law based on the 2013 conviction, plus a one-year enhancement for use of a deadly weapon. According to the minute order, the court imposed two five-year enhancements pursuant to section 667, subdivision (a)(1) and imposed a term of one year for the former section 667.5(b) prior and stayed the punishment.