People v. Godinez CA2/8

Filed 11/24/20 P. v. Godinez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B298474

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA126401) v.

JOSE GODINEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Pat Connolly, Judge. Affirmed. Orly Ahrony for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jose Godinez was convicted by jury in February 2014, along with two codefendants, of one count of premeditated attempted murder. A gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) and a firearm use enhancement (§ 12022.53, subd. (e)(1)) were also found true. Defendant was sentenced to an indeterminate term of 40 years to life. In an unpublished opinion, we affirmed the convictions of all defendants but reversed the firearm use enhancement and remanded for resentencing. (People v. Ifopo (Feb. 16, 2016, B255922) [nonpub. opn.].) Specifically, as to defendant Godinez, we said: “the court shall strike the [Penal Code] section 12022.53, subdivision (e)(1) enhancement. The court shall sentence him under section 12022.53, subdivision (d) instead of under subdivision (e)(1).” The Supreme Court denied review. In August 2016, the resentencing hearing was held. Defendant’s counsel was present, but defendant was not present. The court struck the firearm use enhancement pursuant to Penal Code section 12022.53, subdivision (e)(1). The court then imposed an aggregate sentence of 40 years to life, consisting of 15 years to life for the attempted murder, and 25 years to life for the firearm use pursuant to section 12022.53, subdivision (d). The court forwarded a new abstract of judgment to the Department of Corrections and Rehabilitation. Defendant did not appeal. More than two years later, on February 19, 2019, defendant filed a petition for writ of habeas corpus seeking to vacate the August 2016 judgment of conviction and requesting a new sentencing hearing to take place in his presence.