People v. Potts CA2/2

Filed 4/13/21 P. v. Potts CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B307383

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA094029) v.

TIMOTHY POTTS,

Defendant and Appellant.

THE COURT: A jury convicted defendant and appellant Timothy Potts of inflicting corporal injury upon a person with whom he had a “dating relationship” following a prior domestic violence conviction (Pen. Code, § 273.5, subd. (f)(2); count 1) and six counts of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2); counts 4–9). The trial court found it true that defendant had suffered two prior “strike” convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), as well as two serious felony convictions (Pen. Code, § 667, subd. (a)(1)) and

five prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court partially granted defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), striking one prior conviction as to counts 5 through 9, but denying the motion as to count 4, and sentenced defendant to serve a total of 43 years eight months to life in state prison. The sentence included two five-year serious felony enhancements pursuant to Penal Code section 667, subdivision (a)(1). (People v. Potts (May 3, 2019, B290757) [nonpub. opn.], at p. 2 (Potts I).) Defendant appealed. We remanded so that the trial court could exercise its new discretion pursuant to Senate Bill No. 1393 to consider striking one or both of the serious felony enhancements. We affirmed in all other respects. (Potts I, supra, B290757, at pp. 3, 24–26.) At the November 6, 2019, hearing following remand, the trial court declined to strike either of the serious felony enhancements. Defendant again appealed, arguing that the trial court erred by denying his request to reconsider his Romero motion. On January 19, 2021, we affirmed the trial court’s judgment. (People v. Potts (Jan. 19, 2021, B303966) [nonpub. opn.], at p. 1 (Potts II).) While defendant’s appeal in Potts II was pending, on December 5, 2019, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court regarding errors in the abstract of judgment as to counts 1 and 4. On July 14, 2020, in response to the CDCR’s letter, the trial court reimposed a three-strike sentence of 25 years to life as to count 4. It granted a Romero motion as to count 1,