People v. Deo CA3

Filed 11/3/15 P. v. Deo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sutter) ----

THE PEOPLE, C076440

Plaintiff and Respondent, (Super. Ct. No. CRF130699)

v.

RAJINDER SINGH DEO,

Defendant and Appellant.

A jury found defendant Rajinder Singh Deo guilty of willful infliction of corporal injury upon his spouse. (Pen. Code, § 273.5, subd. (a).)1 (People v. Deo (Aug. 22, 2014, C074334) [nonpub. opn.] (Deo).) In July 2013, defendant was sentenced to prison for the middle term of three years. Execution of sentence was suspended and defendant was placed on formal probation for five years on the condition, among others, that he serve

1 Undesignated statutory references are to the Penal Code.

1

one year of incarceration with 244 days’ presentence credit. Defendant appealed from the judgment and this court affirmed his conviction. (Deo, supra, C074334; see also fn. 2, post.)2 In April 2014, defendant’s counsel filed a motion to modify probation by reducing the period of incarceration from one year to 360 days. The motion was supported by the declarations of counsel and defendant that he was in the custody of federal immigration officials and the subject of pending deportation proceedings. The motion claimed the requested relief could provide him relief from deportation. He did so in the belief that, as an immigrant convicted of an offense, it would by changing his penalty from a felony to the penalty for a misdemeanor, affect his eligibility for deportation. On April 11, 2014, the trial court heard and denied defendant’s motion, concluding it did not have the authority to modify probation as requested. Defendant appeals from this ruling. Defendant contends that section 18.5, enacted during the pendency of this appeal and before the finality of the judgment, lessens the punishment for defendant’s offense and must be applied retroactively to this case. We disagree. FACTS The record in this appeal does not include the facts of the underlying offense.3 The record includes only defense counsel’s remark that the case involved defendant “hitting [his] wife with a broom” and the trial court’s remark that “the underlying crime, although it’s a serious crime the facts of this case are minor in relationship to most other [section] 273.5 violations that we see.”