People v. Smith CA4/3

Filed 12/14/21 P. v. Smith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059572

v. (Super. Ct. No. FWV035340)

TERRYANCE ACEY SMITH, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Ingrid Adamson Uhler, Judge. Reversed and remanded with instructions. Kenneth H. Nordin, 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, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Terryance Acey Smith argues the trial court violated his constitutional rights by ruling there was good cause to sentence him in his absence due to the Covid-19 pandemic. We agree and remand the matter for a new resentencing hearing at which Smith is present unless he waives his presence in accordance with Penal Code section 1 1193. FACTS “In 2006, a jury convicted Smith of 33 felony counts: 13 counts of robbery (§ 211), 14 counts of false imprisonment (§ 236), and six counts of dissuading a witness (§ 136.1, subd. (c)(1)). As to all the counts, the jury found true Smith was a principal armed with a firearm under section 12022, subdivision (a)(1). At a bench trial, the trial court found all the strike prior allegations to be true. The trial court sentenced Smith to an indeterminate life sentence of 380 years and 8 months. (See People v. Smith (Dec. 29, 2008, G040872) [nonpub opn.].)” (People v. Smith (Jan. 15, 2016, G050533) [nonpub. opn.] (Smith II).) “In 2014, Smith filed a petition for recall of sentencing and request for resentencing under section 1170.126. The trial court denied the petition, reasoning section 1170.126 did not apply and Smith was ineligible for resentencing because his current convictions for robbery were both serious and violent felonies (§§ 667.5, subd. (c)(9) [robbery], 1192.7, subd. (c)(19) [robbery]).” (Smith II, supra, G050533.) Smith appealed the court’s denial of his petition, and in 2016, a different panel of this court concluded Smith was not ineligible for resentencing and reversed and remanded the matter for further proceedings. Specifically, we remanded and instructed “[t]he trial court must first decide the threshold question whether Smith is eligible for resentencing.” (Ibid.)