People v. O'Bannon CA2/3

Filed 3/23/22 P. v. O’Bannon CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B309426

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA149850) v.

RUSSELL L. O’BANNON, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Reversed. Robert L. Hernandez, 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, Zee Rodriguez, Shezad H. Thakor and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

A jury found Russell O’Bannon, Jr., guilty of offenses arising out of his assault with a deadly weapon of a co-resident at a living facility. O’Bannon appeals the judgment, raising only two sentencing issues,1 one of which the Attorney General concedes. A jury found O’Bannon guilty of one count of assault with a deadly weapon (Pen. Code,2 § 245, subd. (a)(1)) with a true finding on a great bodily injury allegation (§ 12022.7, subd. (a)) and one count of mayhem (§ 203) with a true finding on a personal use of a deadly and dangerous weapon allegation (§ 12022, subd. (b)(1)). The trial court thereafter found that O’Bannon had a prior strike that fell within the meaning of the Three Strikes law and constituted a five-year prior under section 667, subdivision (a)(1). At the sentencing hearing on December 8, 2020, the prosecutor moved to dismiss the prior strike, the great bodily injury enhancement, and the five-year prior, citing a new directive from the District Attorney.3 The trial court asked if there was any authority permitting the District Attorney to withdraw the allegations after the verdict had been rendered, and the prosecutor responded he had none. The trial court said it could have entertained the motion under section 1385 had it been