People v. Jenkins CA5

Filed 5/13/25 P. v. Jenkins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F088068 Plaintiff and Respondent, (Super. Ct. No. CR-22-013512) v.

DANNY PAUL JENKINS, JR., OPINION Defendant and Appellant.

THE COURT*† APPEAL from a judgment of the Superior Court of Stanislaus County. Carrie M. Stephens, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Smith, J. and Fain, J.† † Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant, Danny Paul Jenkins, Jr., contends on appeal that his sentence must be vacated and the matter remanded for further proceedings, including resentencing, because the terms of his plea agreement were violated when the trial court imposed the upper term on count 1 without the prosecution first presenting circumstances in aggravation to the court. The People agree. We vacate defendant’s sentence on count 1 and remand for resentencing in conformity with the plea agreement. In all other respects, the judgment is affirmed. PROCEDURAL SUMMARY On December 20, 2022, the Stanislaus County District Attorney filed a complaint charging defendant with second degree burglary (Pen. Code, § 459; count 1)1 and misdemeanor shoplifting (§ 459.5, subd. (a); count 2). The information further alleged defendant suffered three prior strike convictions (§§ 667, subd. (d); 1192.7, subd. (c)). On December 27, 2022, defendant entered into a plea agreement with a Cruz2 waiver. Defendant pled no contest to count 1, and admitted one of the prior strike allegations, with the remaining count and allegations dismissed in connection with the plea. Pursuant to the Cruz waiver, defendant was released on his own recognizance pending the sentencing hearing. The plea agreement with the Cruz waiver provided that if he appeared at the subsequent sentencing hearing and did not commit any new law violations, he would be sentenced to the low term (doubled pursuant to the prior strike) of two years eight months. However, it provided that if defendant failed to appear at sentencing or committed a new law violation, the prosecution would present circumstances in aggravation and defendant would be sentenced to an upper term (doubled pursuant to the prior strike) for a total of six years. On September 29, 2023, defendant failed to appear at the sentencing hearing.