People v. Bennett CA2/1

Filed 8/21/20 P. v. Bennett CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B299557

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA434959) v.

TRISTIAN BENNETT,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed. Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ____________________________

Jurors convicted defendant Tristian Bennett of second degree murder and of assaulting a child under age eight with force likely to produce great bodily injury resulting in the child’s death. In a prior appeal, this court affirmed the judgment of conviction but remanded the case to the trial court to decide whether to strike the five-year enhancement for Bennett’s prior serious felony conviction. Upon remand, the trial court chose not to strike the enhancement. The trial court modified the judgment to correct a clerical error. Defendant appealed from the judgment. Defendant’s appellate counsel filed a brief pursuant to the procedures described in People v. Wende (1979) 25 Cal.3d 436 (Wende) and requested this court independently review the record. We have reviewed the record and find no error. The judgment is affirmed.

BACKGROUND Bennett and his girlfriend Morgan Bitson killed Bitson’s four-year-old son. “The fatal blow severed Woods’s liver in two, causing him to bleed profusely.” The trial court sentenced Bennett pursuant to the “Three Strikes” law to prison for 75 years to life on the assault causing death of a child and stayed a 15-year-to-life sentence on the murder. The trial court added an additional five years to Bennett’s sentence pursuant to Penal Code section 667, subdivision (a)(1). After the trial court sentenced defendant, Senate Bill No. 1393 granted trial courts discretion to strike the prior conviction as it relates to the five-year sentence enhancement under Penal Code section 667, subdivision (a)(1). (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) This court remanded the case to the trial court to exercise its discretion.