People v. Gilkey CA5

Filed 9/8/20 P. v. Gilkey CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F079008 Plaintiff and Respondent, (Super. Ct. No. F18903518) v.

ANTHONY BRYAN GILKEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P.J., Franson, J. and Meehan, J.

Defendant Anthony Bryan Gilkey contends on appeal that his five one-year prior prison term enhancements, imposed based on his prior felony convictions for nonsexually violent offenses, should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People concede the enhancements should be stricken. The parties also agree that we should correct an error in the abstract of judgment. We strike the prior prison term enhancements, order the error corrected, and affirm in all other respects. PROCEDURAL SUMMARY On August 23, 2018,2 the Fresno County District Attorney charged defendant with three counts of inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (f)(1); counts 1, 3 & 5), three counts of failing to obey a protective order (§ 166, subd. (c)(1); counts 2, 4 & 7), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 6). As to all counts, the information alleged defendant had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), had suffered a prior serious felony conviction (§ 667, subd. (a)), and had served five prior prison terms (§ 667.5, subd. (b)). As to counts 1, 3, and 5, it was alleged that defendant had previously been convicted of infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (f)(1)). As to count 5, it was further alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)). On October 18, the trial court dismissed count 4 on the district attorney’s motion. On October 19, the jury found defendant guilty on counts 1, 2, 3, 5, 6, and 7. The jury also found true the great bodily injury allegation on count 5 and the prior conviction of infliction of corporal injury on a spouse or cohabitant allegations on counts 1, 3, and 5.