People v. Atwell CA5

Filed 1/12/26 P. v. Atwell CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083580 Plaintiff and Respondent, (Super. Ct. No. F21904262) v.

MICHAEL VINCENT ATWELL, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION A jury convicted Michael Vincent Atwell (defendant) of second degree robbery and possession of a firearm by a felon, and the court found true that defendant’s 2014 conviction for active participation in a criminal street gang (Pen. Code,1 former § 186.22, subd. (a)) was a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On appeal, defendant argued that he is entitled to a remand to permit the trial court to reconsider his request to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 in light of subsequent amendments to section 186.22. We affirmed the judgment. Our prior opinion was vacated by our Supreme Court with directions to reconsider whether People v. Fletcher (2025) 18 Cal.5th 576 (Fletcher) requires resentencing defendant. In accordance with the direction from the Supreme Court, we vacated our earlier opinion and gave the parties an opportunity to file supplemental briefing. Neither party filed supplemental briefing. We affirm defendant’s convictions but, in light of the Supreme Court’s decision in Fletcher, we vacate the trial court’s finding that defendant’s 2014 conviction for violating former section 186.22, subdivision (a) constituted a prior serious felony conviction for purposes of Three Strikes sentencing and imposition of a prior serious or violent felony conviction enhancement. (See Fletcher, at p. 583.) Defendant’s sentence is vacated, and this matter is remanded for further proceedings consistent with this opinion. This renders defendant’s Romero claim moot, and we do not reach it. Except as modified, judgment is affirmed.