People v. Williams CA2/1

Filed 5/20/21 P. v. Williams CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B305218

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA318827) v.

SMITTY WILLIAMS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Reversed and remanded with directions. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________ Smitty Williams appeals from an order denying his petition to recall his sentence under Penal Code section 1170.91.1 Because the record indicates the trial court (and Williams’s appointed counsel) considered the matter under a different and inapplicable statute, we reverse the order and remand the matter for a hearing under section 1170.91, subdivision (b). The Attorney General concedes this is the appropriate disposition. BACKGROUND In 2008, a jury found Williams guilty of forcible rape (§ 261, subd. (a)(2)), unlawful sexual penetration (§ 289, subd. (a)(1)), and two counts of forcible oral copulation (former § 288, subd. (c)(2)). The jury also found true the special allegation that Williams used a knife during commission of the offenses, within the meaning of section 12022.3, subdivision (a). Williams was a taxi driver, and the victim was his legally blind passenger. (People v. Williams (Apr. 9, 2010, B212342) [nonpub. opn.].)2 In October 2008, the trial court sentenced Williams to an indeterminate term of 15 years to life for the rape. The court further sentenced Williams to a consecutive and total determinate term of 54 years for the other three offenses: the upper term of eight years for each of the three offenses, plus the upper term of 10 years for the deadly weapon enhancement on each of the three offenses. Effective January 1, 2019, the Legislature amended section 1170.91 to add subdivision (b), which provides in pertinent part: