People v. Smith CA2/5

Filed 3/14/16 P. v. Smith CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262247

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA017264) v.

ANDY RICHARD SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Larry Pizarro, 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.

I. INTRODUCTION

A jury convicted defendant, Andy Richard Smith, in 1996 of assault by means of force likely to produce great bodily injury (count 1) and corporal injury infliction (count 2). (Former Pen. Code, § 245, subd. (a)(1), Stats. 1993, ch. 369, § 1, pp. 2168-2169, now subd. (a)(4)1; § 273.5, subd. (a)(1).) Defendant was found to have sustained two prior robbery convictions which were both violent and serious felonies. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) Defendant was also found to have sustained one prior kidnapping conviction, also a violent and serious felony. (§§ 667.5, subd. (c)(14); 1192.7, subd. (c)(20).) Defendant was sentenced to 25 years to life on count 1 and 25 years to life on count 2. The count 2 sentence was stayed pursuant to section 654, subdivision (a). (§§ 667, subds. (b)-(i), 1170.12.) On appeal, we reversed defendant’s sentence and ordered resentencing . (People v. Smith (Jan. 9, 1997, B101524 [nonpub. opn.].) On appeal following resentencing, we affirmed the judgment. (People v. Smith (Aug. 31, 1998, B116825) [nonpub. opn.].) The present appeal is from an order denying defendant’s section 1170.126, subdivision (b) resentencing petition. The trial court found defendant was ineligible for resentencing. The trial court ruled defendant had intended to inflict great bodily injury during the commission of the assault and corporal injury infliction offenses. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii), 1170.126, subd. (e)((2).) We affirm the order.