People v. Tellez CA4/3

Filed 5/2/22 P. v. Tellez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059713

v. (Super. Ct. No. 17CF2601)

RUBEN RAMIREZ TELLEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed in part and reversed in part. Michael C. Sampson, 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, Charles C. Ragland, Eric A. Swenson, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

Ruben Ramirez Tellez appeals from the judgment after a jury convicted him of assault with the intent to commit a sexual offense (Pen. Code, § 220, subd. (a)(1); count 1),1 assault with a deadly weapon (§ 245, subd. (a)(1); count 2); and false imprisonment by violence (§§ 236, 237, subd. (a); count 3). The jury also found Tellez used a deadly weapon in the commission of the offenses in counts 1 and 3. (§§ 12022.3, subd. (a), 12022, subd. (b)(1).) The trial court imposed a total prison sentence of 16 years, which included upper terms on count 1 and its attending deadly weapon enhancement. Tellez raises two sentencing issues on appeal. First, he contends the trial court abused its discretion by relying on improper aggravating factors to impose upper terms on the assault conviction in count 1 and its deadly weapon enhancement. While this appeal was pending, Senate Bill No. 567 (Reg. Sess. 2020-2021) (Stats. 2021, ch. 731) became effective. It is an ameliorative change in the law that restricts the court’s discretion to impose a sentence greater than the middle term of imprisonment. (Stats. 2021, ch. 731, § 1.) The parties agree Senate Bill No. 567’s provisions apply retroactively to this case. Tellez argues the matter must be remanded so the trial court can resentence him consistent with the changes made by Senate Bill No. 567. The Attorney General disagrees, asserting remand is unnecessary because any error is harmless. We agree with Tellez. We vacate the sentence and remand the matter for further proceedings consistent with Senate Bill No. 567. Second, Tellez argues the trial court’s order for testing under section 1202.1 must be stricken because he was not convicted of a qualifying offense. The Attorney General concedes this issue, and we accept the concession. Accordingly, we vacate the order for testing under section 1202.1.