People v. Gates CA4/1

Filed 10/18/21 P. v. Gates CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077631

Plaintiff and Respondent,

v. (Super. Ct. No. SCD274056)

WILLIAM CHARLES GATES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Remanded with directions. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

Following a bench trial, William Charles Gates was convicted of assault

by means of force likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)), battery with serious physical injury (§ 243, subd. (d)), and battery by gassing (§ 243, subd. (9)(a)). The court also found true that Gates personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8) and 12022.7, subd. (a)); was ineligible for parole (§ 1203, subd. (e)(4)); had served two prior prison terms (§ 667.5, subd. (b)); had a serious felony prior (§ 667, subd. (a)(1)); and had a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced Gates to 17 years in prison. Gates successfully appealed, and at a resentencing hearing from which Gates was absent, the court sentenced him to 16 years in state prison and imposed the minimum amounts for the restitution fine and for fees and assessments. Gates appeals the superior court’s resentencing, contending (1) he was prejudiced by his improper exclusion from the resentencing hearing; (2) the court failed to recalculate custody credits, and (3) the court improperly imposed the fines, fees, and assessments. The Attorney General challenges Gates’s first and third contentions but concedes the court should have recalculated the custody credits. The Attorney General also contends that the abstract of judgment must be modified to reflect amendments to section 667.5, subdivision (b), eliminating the one-year prior prison term enhancements. We will remand the matter for resentencing so the court can recalculate custody credits and strike the one-year prior prison term enhancements from the abstract of judgment. Because we are remanding the matter for resentencing, Gates will have the opportunity to make additional