People v. Walker CA5

Filed 3/10/22 P. v. Walker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F082376 Plaintiff and Respondent, (Super. Ct. No. F20900159) v.

RUBEN CHARLES WALKER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleksa, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.

Defendant Ruben Charles Walker contends on appeal that (1) his sentence on count 2 should be stayed pursuant to Penal Code section 654;1 and (2) his sentence on count 1 must be vacated and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). We stay defendant’s sentence on count 2, and affirm the case in all other respects. PROCEDURAL SUMMARY On March 4, 2020, the Fresno County District Attorney filed an information charging defendant with one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and one of count battery with serious injury (§ 243, subd. (d); count 2). The information alleged in count 1 that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) during the commission of the charged assault. The information further alleged defendant had suffered two prior felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)– (i), 1170.12, subds. (a)–(d)) that also qualified as prior serious felony convictions (§ 667, subd. (a)). On October 14, 2020, a jury found defendant guilty on both count 1 and count 2, and found the great bodily injury allegation to be true. Upon entry of the verdicts, a court trial was held on the prior conviction allegations. Both were found to be true. The trial court struck one of the prior strike convictions. The court sentenced defendant to 16 years in prison as follows: on count 1, eight years (the upper term, doubled due to the prior strike conviction), plus a consecutive three-year great bodily injury enhancement (§ 12022.7, subd. (a)), plus a consecutive five-year prior serious felony conviction enhancement (§ 667, subd. (a)); on count 2, eight years (the upper term, doubled due to the prior strike conviction), concurrent to the sentence on count 1.