People v. Mitchell CA2/8

Filed 11/30/21 P. v. Mitchell CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B308527

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA091753) v.

JOSE PEPE MITCHELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed. Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jose Pepe Mitchell appeals the postjudgment order denying his request to strike a five-year enhancement after we remanded for resentencing to allow the trial court the opportunity to consider whether to exercise its discretion to strike the enhancement pursuant to recently enacted legislation. We affirm. BACKGROUND Defendant was charged with criminal conspiracy, three counts of second degree robbery and three counts of attempted second degree robbery. The jury acquitted him on one of the robbery counts but otherwise convicted him as charged. The court sentenced defendant to 21 years in prison and awarded 1,624 days of presentence custody credits. Defendant appealed, arguing the trial court erred in denying his motion for mistrial based on juror misconduct and that none of the six counts on which he was convicted was supported by substantial evidence. In our original unpublished opinion filed October 11, 2018, we affirmed defendant’s conviction in its entirety. The Supreme Court granted review and transferred the case to us with directions to vacate our decision and reconsider the cause in light of the then-recent passage of Senate Bill No. 1393 (2017–2018 Reg. Sess.). Senate Bill No. 1393 became effective January 1, 2019, and granted trial courts the discretion to strike recidivist enhancements imposed under Penal Code section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, § 1.) At the time defendant was originally sentenced in 2017, imposition of the enhancement was mandatory. We vacated our original decision and remanded for resentencing to allow the trial court the opportunity to consider