People v. Kain CA5

Filed 6/28/22 P. v. Kain 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082978 Plaintiff and Respondent, (Super. Ct. No. VCF321959B) v.

DANIEL WAYNE KAIN, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Michele A. Douglass, 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, Robert Gezi and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Peña, J.

Defendant Daniel Wayne Kain pled no contest to robbery and admitted a firearm allegation. On appeal, defendant argues that his sentence must be vacated and the matter remanded in light of Assembly Bill No. 124’s (2021–2022 Reg. Sess.) (Assembly Bill 124) amendments to Penal Code1 section 1170, subdivision (b)(6). The People agree that the amendments to section 1170, subdivision (b)(6), apply retroactively to defendant and require defendant’s sentence to be vacated, and the matter to be remanded for resentencing. We vacate defendant’s sentence and remand for resentencing. In all other respects, the judgment is affirmed. PROCEDURAL SUMMARY On September 28, 2015, the Tulare County District Attorney filed an information, charging defendant, who was 18 years of age, with second degree robbery (§ 211; count 1). On June 9, 2016, the Tulare County District Attorney amended the information to allege that defendant used a firearm in the commission of count 1 (§ 12022.5).2 On the same date, defendant pled no contest to count 1 and admitted the firearm enhancement based on the trial court’s indicated sentence: seven years in prison, suspended, with a grant of probation for three years; defendant would be required to serve one year in jail as a condition of probation. On July 6, 2016, the trial court imposed the indicated sentence as follows: on count 1, three years (the middle term) plus a four-year firearm enhancement (the middle term). The sentence was suspended, and defendant was granted probation for three years and ordered to serve one year in jail as a condition of probation.