People v. Mulato CA5

Filed 5/10/22 P. v. Mulato 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F081891 Plaintiff and Respondent, (Super. Ct. No. CRF55581) v.

MARTIN F. MULATO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Rachel Varnell, 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, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

PROCEDURAL BACKGROUND In 2017, defendant Martin F. Mulato and a codefendant, both inmates, were involved in a fight against a third inmate, whom they struck multiple times with their fists. The victim had minor injuries to his face and body, and he was transported to the hospital due to temporary loss of consciousness, but no further injuries were reported. Defendant was charged with two felonies, assault by a prisoner with a deadly weapon (fists) and with force likely to produce great bodily injury (GBI), with an attached sentence enhancement for personal infliction of GBI (count 1),1 and battery with infliction of serious bodily injury (count 2). (Pen. Code, §§ 4501, 12022.7, subd. (a), 243, subd. (d).2 The information also alleged that defendant suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)3 The parties were unable to reach a plea agreement and the matter was confirmed for trial. On the morning of trial, defendant entered an open plea of guilty to counts 1 and 2, and he admitted the sentence enhancement and prior strike conviction as charged. Thereafter, defendant filed a Romero motion requesting the trial court strike the prior felony conviction allegation, which the prosecutor opposed. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530 (Romero) [trial court may strike prior felony conviction allegation on its own motion under § 1385].) Defendant then hired a new attorney, who filed a motion to set aside the information and a motion to withdraw from the plea, which the prosecutor also opposed. (§§ 995, 1018.) The record reflects the trial court declined to hear the motion to set aside the information because it was