People v. Olivas CA5

Filed 10/5/21 P. v. Olivas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079369 Plaintiff and Respondent, (Super. Ct. No. F15901384) v.

ERNESTO ALONSO OLIVAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Franson, J.

Defendant Ernesto Alonso Olivas was found guilty by jury trial of rape, forcible oral copulation, and false imprisonment by violence. In addition, he admitted one prior serious felony conviction, one prior “strike,” and two prior prison term allegations. On appeal, he contends his two prior prison term enhancements should be stricken in light of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). We order the prior prison term enhancements stricken and affirm in all other respects. PROCEDURAL SUMMARY On July 21, 2016, the Fresno County District Attorney filed a first amended information charging defendant with forcible rape (Pen. Code, § 261, subd. (a)(2);1 count 1), forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2), and false imprisonment by violence (§ 236; count 3). As to counts 1 and 2, the information further alleged defendant used a deadly weapon within the meaning of section 12022.3, subdivision (a), and as to count 3, he used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). The information also alleged defendant had suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a prior serious felony conviction (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)). On April 24, 2019, a jury found defendant guilty of all counts, but found the weapon use allegations not true. Defendant admitted all prior allegations. On May 22, 2019, the trial court sentenced defendant to an aggregate term of 26 years in state prison as follows: as to count 1, eight years doubled to 16 years pursuant to the Three Strikes law, plus five years pursuant to section 667,