People v. Dominici CA2/5

Filed 7/14/15 P. v. Dominici CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B260400

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA035338) v.

SAMUEL JOSEPH DOMINICI,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed in part; reversed in part with directions. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Samuel Joseph Dominici, was convicted in 1998 of: “assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury” (Penal Code,1 § 245, former subd. (a)(1), amended by Stats. 1993, ch. 369, § 1); corporal injury (§ 273.5, former subd. (a), amended by Stats. 1988, ch. 576, § 1); false imprisonment (§ 236); and heroin possession (Health & Saf. Code, former § 11350, subd. (a), amended by Stats. 1991, ch. 257, § 1). As to the aggravated assault count, the jury expressly found that the deadly weapon was an iron. Defendant was sentenced to consecutive 25-year-to-life terms for aggravated assault and heroin possession under former sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2). (Stats. 1994, ch. 12, § 1, p. 74; Stats. 1994, Initiative Measures, p. A-316.) The sentences on the remaining two counts were stayed under section 654, subdivision (a). Defendant appeals from the denial of his resentencing petition under section 1170.126. The trial court found defendant was ineligible for resentencing because, during the commission of the current aggravated assault offense, he was armed with a deadly weapon. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)(2).) We agree that defendant is ineligible for resentencing on his aggravated assault conviction. Defendant does not contest the trial court’s ruling that he was ineligible for resentencing on the aggravated assault charge because he was armed with a deadly weapon. Thus, any contention to that effect is forfeited. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70 disapproved on another point in Bailey v. Los Angeles (1956) 46 Cal.2d 132, 139.) And defendant’s failure to do so is well thought out. The jury expressly found he used an iron in committing the deadly weapon assault thereby rendering him ineligible for resentencing on that count. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c) (2)(C)(iii); People v. White (2014) 223 Cal.App.4th 512, 527.)