People v. Lake CA4/1

Filed 4/20/22 P. v. Lake CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078734

Plaintiff and Respondent,

v. (Super. Ct. No. SCD274161)

DARIUS LAKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O’Neill, Judge. Reversed with directions. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Arlene A. Sevidal and Jennifer A. Jadovitz, Acting Assistant Attorneys General, Daniel Rogers, Vincent P. LaPietra, and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

Darius Lake appeals the judgment imposed on resentencing after remand following a prior appeal to allow the sentencing court to exercise its discretion to strike five-year enhancements for a prior serious felony conviction. Lake contends the trial court erred by striking the enhancements and resentencing him in his absence and by refusing to consider his eligibility for a diversion program for defendants with qualifying mental disorders that became available after he was initially sentenced. Lake also contends legislation that went into effect after he was resentenced entitles him to a full resentencing hearing and asks us to remand the matter with a direction that further proceedings be conducted by a different judge. We conditionally reverse the judgment and remand the matter to allow the trial court to consider whether to grant diversion. I. BACKGROUND A jury found Lake guilty of 10 counts of robbery and one count of attempted robbery arising out of incidents at five banks. The trial court found Lake had three prior convictions of bank robbery in a federal court case, which constituted three strikes for purposes of the Three Strikes law and one serious felony conviction for purposes of a five-year enhancement. On June 15, 2018, the court (Hon. Robert F. O’Neill) imposed a prison term of five years plus 25 years to life on each conviction, five of which were to be served consecutively and six concurrently, for an aggregate term of 25 years plus 125 years to life. On appeal, this court rejected Lake’s claims the prosecutor used peremptory challenges to jurors in a racially discriminatory manner and committed misconduct during closing argument. Based on a change in law that occurred while the appeal was pending and that granted courts