People v. Cervantes CA4/1

Filed 5/16/22 P. v. Cervantes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079691

Plaintiff and Respondent,

v. (Super. Ct. No. SCE403126)

EMILIO ORTIZ CERVANTES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Emilio Ortiz Cervantes of assault with a deadly

weapon (Pen. Code,1 § 245, subd. (a)(1)) and made a true finding that Cervantes personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Cervantes admitted a prior serious felony conviction (§ 667, subd. (a)(1), and a strike prior (§ 667, subds. (b)-(i)). The court sentenced Cervantes to the upper term of four years for the assault conviction, doubled because of the strike prior. The court added three years for the great bodily injury enhancement and five years for the serious felony prior, for a total determinate term of 16 years in prison. Cervantes appeals challenging his sentence. Cervantes contends, and the Attorney General agrees, the case must be remanded for reconsideration of the term imposed for the assault conviction in light of newly enacted amendments to section 1170. We agree with the parties that Cervantes is entitled to the benefit of the new legislation and the case should be remanded