People v. Gilmore CA2/4

Filed 3/27/25 P. v. Gilmore CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B335749

Plaintiff and Respondent, Los Angeles County Super. Ct. No. NA105314 v.

JAMAL LEE GILMORE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Carol J. Najera, Judge. Reversed and remanded with instructions. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION

The issue presented in this appeal is currently on review in the Supreme Court in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted Feb. 21, 2024, S283169 (Rhodius). The issue, as stated on the Supreme Court’s case docket, is: “Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a full resentencing hearing under Penal Code section 1172.75 if the defendant’s prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were imposed and stayed, rather than imposed and executed?” Because this issue is narrow, has been thoroughly analyzed by Courts of Appeal, and will soon be resolved by the Supreme Court, we resolve this case by memorandum opinion. (See Cal. Stds. Jud. Admin., § 8.1.) For the reasons set forth below, we continue to agree with the majority of the Courts of Appeal to address the issue, and we reverse.

BACKGROUND

In 2017, a jury convicted defendant and appellant Jamal Lee Gilmore of felony battery on a peace officer (Pen. Code,1 § 243, subd. (c)(2)) and misdemeanor battery on a custodial officer. (§ 243, subd. (b).) The jury found Gilmore inflicted great bodily injury in the commission of the felony battery. (§ 12022.7, subd. (a).) Gilmore admitted he sustained one prior serious felony conviction and a prior strike conviction. (§§ 667, subd. (a)(1); 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He also admitted he served one prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him to 14 years in state prison,