People v. Flores CA5

Filed 6/10/21 P. v. Flores 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080730 Plaintiff and Appellant, (Super. Ct. No. F17905937) v.

SALVADOR CASTELLANOS FLORES, OPINION Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Lisa A. Smittcamp, District Attorney, Galen Rutiaga, Chief Deputy District Attorney, and Stacey L. Phillips, Deputy District Attorney, for Plaintiff and Appellant. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Respondent. -ooOoo-

SEE DISSENTING OPINION

INTRODUCTION Defendant Salvador Castellanos Flores pled no contest to attempted residential robbery (Pen. Code,1 §§ 211, 664; count 1), with the allegation that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)); attempted residential burglary with the allegation that a nonparticipant was present (§§ 459, 460, subd. (a), 664, 667.5, subd. (c)(21); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). At sentencing, the court imposed the upper term of three years on count 1 and stayed sentence on the remaining counts pursuant to section 654. In place of sentencing on the firearm enhancement admitted under section 12022.53, subdivision (b), the court imposed a three-year term for an uncharged firearm enhancement under section 12022.5, subdivision (a), stating it had the discretion to do so pursuant to section 1385 and People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison). The People appeal. They rely on People v. Tirado (2019) 38 Cal.App.5th 637, review granted November 13, 2019, S257658 (Tirado), to argue the court had no authority to substitute one firearm enhancement for another in the circumstances presented here. We agree. Accordingly, we reverse. BACKGROUND Defendant was charged with attempted residential robbery (§§ 211, 664; count 1), with the allegation that he personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)); attempted residential burglary with the allegation that a nonparticipant was present (§§ 459, 460, subd. (a), 664, 667.5, subd. (c)(21); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). The charges arose out of an incident in which the victim, who was at home with two young children in the early morning, heard a loud noise and looked outside to see Alfonzo Martinez standing outside