People v. Jensen CA1/5

Filed 5/16/22 P. v. Jensen CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A162188 v. MATTHEW JENSEN, (Del Norte County Super. Ct. No. CRF209314) Defendant and Appellant.

Defendant and appellant Matthew Jensen (appellant) appeals from the trial court’s judgment sentencing him to four years in prison after he pleaded guilty to committing a battery causing serious bodily injury (Pen. Code § 243, subd. (d)).1 He contends the trial court erred in concluding he was ineligible for probation. We conclude the court erred, but the error was harmless because the court expressly stated it would have denied probation if appellant had been eligible. On remand, we direct the court to correct the abstract of judgment in several respects. BACKGROUND In September 2020, the Del Norte County District Attorney filed an information alleging appellant committed assault by means of force likely to

1 All undesignated statutory references are to the Penal Code.

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produce great bodily injury (§ 245, subd. (a)(4); count one); second degree robbery (§ 211; count two); battery causing serious bodily injury (§ 243, subd. (d); count three); criminal threats (§ 422; count four); and simple battery (§ 242; count five). As to counts one and two, the information alleged that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). According to the testimony at the preliminary hearing, the charges arose out of an August 2020 incident during which appellant and his brother approached the victim, who was sitting on a park bench in Crescent City watching videos on his cell phone. One of the men asked the victim where he was from and then began to punch the victim in the head and face. The assailants took the victim’s cell phone and backpack. The victim suffered fractures around his eye and a nose fracture. In November 2020, appellant pleaded guilty to count three, battery causing serious bodily injury, in exchange for the dismissal of the balance of the counts and allegations. Appellant did not admit the offense was a serious felony. There was no agreed-upon sentence. In January 2021, the trial court denied probation and sentenced appellant to the upper term of four years. This appeal followed. DISCUSSION I. The Trial Court’s Ruling Regarding Probation When appellant pleaded guilty to battery causing serious bodily injury, he acknowledged on his plea form that he was presumptively ineligible for probation. Before the trial court took appellant’s plea, defense counsel acknowledged the same. At the sentencing hearing, defense counsel argued the presumption against probation was overcome because of appellant’s youth (he was 22 at the time of the hearing) and because appellant’s cognitive and mental health