People v. Trejo CA1/2

Filed 12/1/20 P. v. Trejo CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A158925 v. ALBERT TREJO, (San Mateo County Super. Ct. No. SC081258) Defendant and Appellant.

This appeal arises from a resentencing hearing in the trial court following a remand from this court in appellant’s prior appeal, directing the trial court to consider whether to exercise its new discretion, pursuant to amended Penal Code section 12022.53, subdivision (h),1 to strike or dismiss the firearm enhancement it had imposed under subdivision (d) of that section. (People v. Trejo (Dec. 12, 2018, A150790) [nonpub. opn.], review denied Feb. 27, 2019.) In this appeal, appellant contends that, notwithstanding our limited remand in the prior appeal, newly enacted Senate Bill No. 1393 gave the trial court the power to exercise its discretion to strike or dismiss appellant’s serious felony enhancement, previously imposed pursuant to section 667, subdivision (a), and the trial court should

All further statutory references are to the Penal Code unless 1

otherwise indicated.

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have considered whether to exercise that discretion at the resentencing hearing. Appellant further contends that because the trial court failed to recalculate his total custody credits at the resentencing hearing, it should be directed on remand to amend the abstract of judgment to include the custody credits from the time of his arrest through the date of his resentencing. Respondent concurs in both contentions. For the reasons discussed herein, we shall reverse and remand the matter for resentencing, to permit the court to exercise its discretion to strike or dismiss the serious felony enhancement. We will also direct the court to recalculate appellant’s custody credits to include all days he has been in custody since the date of his arrest. We shall otherwise affirm the judgment. PROCEDURAL BACKGROUND Appellant was originally charged by information with premeditated murder (§§ 187, subd. (a) & 189—count 1) and being an ex-felon in possession of a firearm (§ 29800, subd. (a)(1)—count 2). The information alleged, as to count 1, that appellant personally and intentionally discharged a firearm. (§ 12022.53, subd (d).) The information further alleged, as to count 2, that appellant had suffered seven prior convictions, including two serious felony convictions pursuant to 667, subdivision (a), and two strike convictions pursuant to section 1170.12, subd. (c)(2). On June 11, 2015, following a jury trial, the jury convicted appellant of first degree murder, finding true the allegation that he had personally and intentionally discharged a firearm, and also convicted him of being an ex- felon in possession of a firearm. Following a court trial, the court struck one of the serious felony allegations and one of the strike allegations, but found the five remaining allegations true.