People v. DeJesus CA3

Filed 12/10/21 P. v. DeJesus CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C093354

Plaintiff and Respondent, (Super. Ct. No. 19F3389)

v.

PETER LUIS DEJESUS,

Defendant and Appellant.

Defendant Peter Luis DeJesus entered an open plea of no contest to several offenses and admitted two prior prison term enhancements. The court suspended execution of defendant’s 14-year sentence and placed him on probation; defendant did not appeal the probationary order. After Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) went into effect, limiting the offenses that qualify for a prior prison term enhancement under Penal Code section 667.5, subdivision (b) (statutory section citations that follow are to the Penal Code), the court ordered defendant’s suspended 14-year sentence into effect for

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violating the terms of his probation. The court declined to strike the previously imposed two one-year prior prison term enhancements even though defendant no longer qualified for the enhancements under Senate Bill 136. On appeal, defendant contends, and the People concede, that the trial court erred in declining to strike both prior prison term enhancements because Senate Bill 136 applies retroactively to his case. We accept the concession and shall remand for resentencing.

FACTS AND HISTORY OF THE PROCEEDINGS In March 2019, defendant was arrested after physically assaulting the victim outside a restaurant; the victim suffered injuries to his face and mouth requiring stitches. He was charged with battery with serious bodily injury (§ 243, subd. (d), count 1), and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). As to each count, it was further alleged that defendant had a prior strike conviction (§ 1170.12), a prior serious felony conviction (§ 667, subd. (a)), had served two prior prison terms (§ 667.5, subd. (b)), and personally inflicted great bodily injury (§ 12022.7). In July 2019, defendant entered an “open plea” of no contest to counts 1 and 2 and admitted each of the enhancement allegations. At the time of the plea, the court said it was tentatively inclined to grant a Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to strike defendant’s strike. At the sentencing hearing in August 2019, the court struck defendant’s prior strike, and sentenced him to 14 years in state prison, including the upper term of four years for count 2, plus five years for the prior serious felony enhancement, three years for the personal infliction of great bodily injury enhancement, and one year for each of defendant’s two prior prison terms. For count 1, the court imposed and stayed a sentence under section 654. The court suspended execution of sentence and placed defendant on probation.