People v. Azevedo CA3

Filed 2/22/22 P. v. Azevedo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Colusa) ----

THE PEOPLE, C093951

Plaintiff and Respondent, (Super. Ct. No. CR60054)

v.

ALEX LEONARD AZEVEDO,

Defendant and Appellant.

Defendant Alex Leonard Azevedo appeals the sentence imposed after this court affirmed his convictions but remanded the matter for a resentencing hearing. Appointed counsel has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record and defendant’s supplemental brief, we note an error in the trial court’s award of postsentencing custody credits pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, 30-34. We find no other arguable error that would result in a disposition more favorable to defendant. As modified with additional custody credits, the judgment is affirmed.

1

BACKGROUND We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) A jury found defendant guilty of first degree burglary (Pen. Code, § 459; count I)1 and taking or stealing a vehicle (as to which defendant admitted a recidivist allegation for a 2006 conviction) (§ 666.5; count II). Defendant also admitted having a 2005 prior “serious” felony conviction (§ 422) subject to a five-year enhancement (§ 667, subd. (a)), and a 2013 conviction (§ 273.5) subject to a one-year enhancement (§ 667.5, subd. (b)). The trial court sentenced him to state prison for an aggregate term of 18 years; the term included the two recidivist enhancements for the 2005 and 2013 convictions. On appeal, we affirmed the judgment of conviction. However, we remanded the matter for the limited purpose of allowing the trial court to strike a one-year enhancement (§ 667.5, subd. (b), referencing Welf. & Inst. Code, § 6600, subd. (b)) and to exercise its discretion in deciding whether to strike a five-year enhancement (§§ 667, subd. (a), 1385, subd. (b)). (People v. Azevedo (June 3, 2020, C088544) [nonpub. opn.].)2 After a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, the parties proceeded to the resentencing hearing. The trial court struck the one-year enhancement but declined to strike the five-year enhancement. The trial court found striking the five- year enhancement was unwarranted because defendant victimized a relative after the relative provided emergency assistance to defendant. The trial court sentenced defendant on count I to six years, doubled to 12 for the prior strike conviction, plus five years for the serious felony prior conviction. On count II, the trial court sentenced defendant to three years, doubled to six for the prior strike conviction, to run concurrently to count I.