People v. Fauolo CA1/2

Filed 7/13/22 P. v. Fauolo CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A162252 v. TAISIA PETE FAUOLO III, (San Mateo County Super. Ct. No. 18NF004967A) Defendant and Appellant.

After a jury found Taisia Pete Fauolo III guilty of assault with a semi- automatic firearm and being a felon in possession of a firearm, he was sentenced, and later resentenced, to 19 years in prison. Fauolo’s sole contention on appeal is that he is entitled to resentencing under Senate Bill No. 567 (Sen. Bill No. 567 (2021–2022 Reg. Sess.) § 1.) (S.B. 567). The People concede as much and we agree. Accordingly, we vacate Fauolo’s sentence and remand for resentencing in light of S.B. 567. BACKGROUND On November 5, 2019, Fauolo was convicted by a jury of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b))1 (count 2) and being a felon in possession of a firearm (§ 29820, subd. (b)) (count 6). The jury also found true enhancements as to count 2: the personal use of a firearm

1 Undesignated statutory references are to the Penal Code.

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(§ 12022.5, subd. (a)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)). The trial court also found true the allegation that Fauolo had a prior serious or violent felony conviction. (§§ 667, subds. (b)–(j), 1170.12.) On August 12, 2020, the court sentenced Fauolo to a total term of 24 years in state prison, calculated as follows: the middle term of six years on count 2, doubled pursuant to section 1170.12, subdivision (c)(1), plus the middle term of four years for the firearm enhancement, a three-year term for the great bodily injury enhancement, and a five-year term for the prior serious felony enhancement. The court also imposed, and stayed, a prison term of 16 months on count 6. Fauolo filed a timely notice of appeal.2 On April 23, 2021, the court resentenced Fauolo and dismissed the prior serious felony enhancement on count 2 on the ground it was based on a nonqualifying prior juvenile adjudication. The court vacated the original sentence and imposed a new sentence of 19 years in state prison on count 2, calculated in the same manner as the original sentence, less the five-year term for the prior juvenile adjudication. As to count 6, the court imposed, and stayed, a prison term of four years. DISCUSSION When Fauolo was resentenced in 2021, section 1170 provided that the choice between the lower, middle, and upper term “shall rest within the