People v. Carbajal CA5

Filed 6/16/22 P. v. Carbajal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F081200 Plaintiff and Respondent, (Super. Ct. No. F17903994) v.

HENRY ZAZUETA CARBAJAL, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Erica Gambale, 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, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Smith, J. and Snauffer, J.

Henry Zazueta Carbajal, Jr. seeks remand for resentencing pursuant to recently enacted legislation, specifically Assembly Bill No. 518 (2021-2022 Reg. Sess.; Stats. 2021, ch. 441) (Assembly Bill 518). The People agree the matter must be remanded for resentencing. We agree with the parties, vacate the sentence, and remand the matter for resentencing. The judgment is otherwise affirmed. FACTS AND PROCEDURAL HISTORY 1 On July 10, 2017, Carbajal battered his girlfriend, R.V., held her at knifepoint in her own house, hit her repeatedly, threatened to cut out her eyes and chop her up, and threatened to kill her family. As she fled, he urged her not to call law enforcement. After Carbajal was incarcerated, he contacted R.V. by telephone and letter numerous times, urging her not to talk to anyone outside of his own attorney, stating things like “if there’s no victim there’s no crime” and later telling her he would only get out if she testified “nothing happened.” Carbajal was charged with two counts of inflicting corporal injury on a person in a dating relationship (counts 1 & 2; Pen. Code, § 273.5, subd. (a))2 ; one count of making a criminal threat (count 3; § 422); one count of felony false imprisonment (count 4; § 236); one count of dissuading a witness (count 5; § 136.1, subd. (b)(1)) and eight counts of attempting to dissuade a witness (counts 6-12; § 136.1, subd. (b)(2)). It was further alleged as to counts 2 and 3 that Carbajal personally used a deadly weapon (§ 12022, subd. (b)(1)); and that Carbajal had previously suffered two prior serious felony convictions (§ 667, subd. (a)); and had two prior “strike” convictions (§§ 667, subds. (b)- (i), 1170.12, subds. (a)-(d)). The trial court dismissed one of the prior serious felony allegations on the motion of the prosecution. In a bifurcated proceeding, Carbajal admitted two prior strike