People v. Burch CA4/3

Filed 4/8/22 P. v. Burch 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059965

v. (Super. Ct. No. 15CF1159)

R.C. DWAIN BURCH III, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Sentence vacated and matter remanded with directions. Tonja R. Torres, 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, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant is currently serving 24 years to life in prison for attempted murder, aggravated mayhem, domestic battery, and child endangerment and abuse convictions. The trial court imposed an additional 8-year determinate term sentence which it stayed pursuant to Penal Code section 654.1 Due to two pieces of newly effective legislation — Assembly Bill 518 (2021-2022 Reg. Sess.) and Assembly Bill 124 (2021-2022 Reg. Sess.) — we agree with the parties and defendant’s sentence must be vacated and the matter remanded for resentencing to allow the trial court to exercise discretion under the relevant amended sentencing related statutes.

FACTS AND PROCEDURAL BACKGROUND A jury convicted defendant of attempted murder, aggravated mayhem, domestic battery, three counts of child endangerment and one count of child abuse.2 It also found true enhancement allegations concerning personal use of a deadly weapon (§ 12022, subd. (b)(1)), and infliction of great bodily injury during domestic violence (id., subd. (e)). Prior to sentencing, the court found true allegations defendant had suffered two prior strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)) and one prior serious felony conviction (id., subd. (a)(1)) in Nevada. Accordingly, it sentenced defendant to 24 years to life in prison, plus a consecutive determinate term of 13 years. Defendant appealed and another panel of this court found error regarding defendant’s sentence. The unpublished opinion upheld defendant’s convictions but concluded there was insufficient evidence to support the trial court’s finding that the Nevada priors were valid prior strikes and a prior serious felony conviction. (People v. Burch (Aug. 4, 2020, G057270) [nonpub. opn.].) Appellant’s sentence was vacated and