People v. Lopez CA5

Filed 3/18/21 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F077693 Plaintiff and Respondent, (Super. Ct. No. F17905818) v.

CEASAR WILLIAM LOPEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Eric E. Reynolds, 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, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P.J., Smith, J. and DeSantos, J.

Defendant Ceasar William Lopez stands convicted of making criminal threats, resisting an executive officer by threats or violence, and resisting a peace officer. On appeal, he contends (1) the matter should be remanded for the trial court to assess his eligibility for participation in the mental health diversion program and (2) the trial court should have stayed the sentence on the resisting a peace officer conviction pursuant to Penal Code section 654.1 In supplemental briefing, the parties agree that defendant’s one-year prior prison term enhancement should be stricken pursuant to section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We conditionally reverse the judgment, strike the prior prison term enhancement, and remand to the trial court for further proceedings. PROCEDURAL SUMMARY On February 23, 2018, the Fresno County District Attorney filed an information charging defendant with making criminal threats (§ 422; count 1), resisting an executive officer by threats or violence (§ 69; count 2), and resisting a peace officer (§ 148, subd. (a)(1); count 3). The information further alleged that 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)) and had served five prior prison terms (§ 667.5, subd. (b)). On May 4, 2018, the jury found defendant guilty on all counts. On May 7, 2018, in a bifurcated hearing, the trial court found true that defendant had suffered a prior strike conviction and had served five prior prison terms. The prior prison terms found true were served for convictions of receiving stolen property (§ 496, subd. (a)), burglary (§ 459), petty theft (§ 666), driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)), resisting an executive officer (§ 69), dissuading a witness (§ 136.1, subd. (c)(1)), and committing domestic violence (§ 273.5, subd. (a)).