People v. Resendiz CA6

Filed 12/15/15 P. v. Resendiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040803 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1366111)

v.

JESUS RESENDIZ,

Defendant and Appellant.

Defendant Jesus Resendiz pleaded nolo contendere to a count of attempted grand theft of a person (Pen. Code, §§ 664, 487).1 A separate trial was held on defendant’s alleged prior strike, a juvenile adjudication for “Assault by Force Likely to Cause Great Bodily Injury or by a Deadly Weapon” in violation of section 245, subdivision (a)(1). The court found that defendant’s juvenile adjudication qualified as a strike but exercised its discretion to dismiss the prior strike under section 1385. The court then suspended imposition of sentence and placed defendant on three years’ probation, subject to various terms and conditions including that he spend one year in county jail. Defendant appealed, arguing that the court erred when it found his prior juvenile adjudication qualified as a strike. However, since the court struck the prior strike under section 1385, we find that the issue raised is moot.

1 Unspecified statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND Defendant’s underlying offense is not relevant to the arguments he has raised on appeal, which pertain only to his prior juvenile adjudication. We therefore only provide a brief summary of the procedural history of the case. On September 24, 2013, the district attorney filed a complaint charging defendant with attempted second degree robbery (§§ 664, 211, 212.5). It was further alleged that he had suffered a prior strike under sections 667, subdivisions (b) through (i) and 1170.12, which was a juvenile adjudication for assault by force likely to cause great bodily injury or by a deadly weapon in violation of section 245, subdivision (a)(1). On December 20, 2013, defendant pleaded nolo contendere to attempted grand theft of a person (§§ 664, 487, subd. (c)) and the alleged strike prior. On February 10, 2014, defendant withdrew his admission of the alleged prior strike. The following month, a trial was held on the prior strike. The court found that defendant’s juvenile adjudication qualified as a strike but exercised its discretion to strike the prior strike under section 1385. The court suspended imposition of sentence and placed defendant on three years’ probation subject to various terms and conditions, including that he spend one year in county jail. Defendant appealed. DISCUSSION On appeal, defendant argues that the court erred when it concluded that his prior juvenile adjudication for assault with force likely to cause great bodily injury or by a deadly weapon qualifies as a strike under the law. He argues insufficient evidence supports the court’s finding, because the record reflects he was only adjudicated of assault with a deadly weapon, not of assault by force likely to cause great bodily injury. Nonetheless, defendant himself acknowledges that the trial court exercised its discretion to dismiss the prior strike under section 1385. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation.