People v. Pitts CA5

Filed 5/25/22 P. v. Pitts 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082664, F082665 Plaintiff and Respondent, (Super. Ct. Nos. F17904500, v. F18902307)

THOMAS EARL PITTS, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge. Victoria H. Stafford, 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, Catherine Chatman, Kimberley A. Donohue and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Thomas Earl Pitts, Jr., contends on appeal that this court should order the correction of the clerical errors in the abstract of judgment and minute orders. We also ordered the parties to submit supplemental briefing regarding the impact of Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which modified Penal Code section 1170, subdivision (b),1 to require imposition of the middle term of imprisonment unless circumstances in aggravation justify imposition of a greater sentence. (Stats. 2021, ch. 731, § 1.3.) It further modified section 1170, subdivision (b), to require that the circumstances in aggravation be found true beyond a reasonable doubt or be stipulated to by the defendant. (Ibid.) Defendant contends his sentence must be vacated and the case remanded for resentencing in light of Senate Bill 567’s amendments to section 1170, subdivision (b). We order the trial court to amend the minute orders to reflect that defendant pled nolo contendere to one count of possession of child pornography in case No. F17904500 and one count of possession of child pornography in case No. F18902307, and the minute order in case No. F18902307 to reflect that his sentence in case No. F18902307 is consecutive to his sentence in case No. 17904500. The sentence is vacated and the matter is remanded for resentencing in light of amended section 1170, subdivision (b). In all other respects, we affirm. After resentencing, the trial court is directed to prepare an amended abstract of judgment correctly reflecting the offenses to which defendant pled no contest. PROCEDURAL SUMMARY On June 26, 2019, the Fresno County District Attorney filed an information in case No. F17904500 charging defendant with possession of child pornography (§ 311.11, subd. (b); count 1).2 The same day, the Fresno County District Attorney filed another