People v. Cortes CA2/8

Filed 7/25/22 P. v. Cortes CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B313094

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA130706) v.

JOSE LUIS CORTES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Laura F. Priver, Judge. Reversed and remanded with directions. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, for Plaintiff and Respondent.

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In July 2014, pursuant to a negotiated plea agreement, defendant and appellant Jose Luis Cortes pled no contest to carjacking (Pen. Code, § 215, subd. (a)) and second degree robbery (§ 211). Defendant admitted an allegation of personal gun use as to both counts (§ 12022.53) and further admitted having suffered a prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law and section 667, subdivision (a)(1). The parties stipulated to a factual basis for the plea and the court accepted defendant’s plea and waivers on the record, finding them to have been knowingly, intelligently and voluntarily made. The remaining counts and special allegations were dismissed pursuant to Penal Code section 1385. In accordance with the plea agreement, the court sentenced defendant to state prison for 23 years, calculated as follows: the low term of three years on the carjacking count, doubled due to the prior strike, plus a consecutive 10-year term for the gun use enhancement and a consecutive five-year term pursuant to Penal Code section 667, subdivision (a)(1); and on the robbery count, a consecutive one-year term (one-third the midterm), doubled due to the strike prior. The court imposed and stayed a 10-year term for the gun use enhancement as to the robbery count. In October 2020, pursuant to Penal Code former section 1170, subdivision (d)(1), the Secretary of the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the superior court recommending that defendant’s sentence be recalled and that he be resentenced in light of the amendments to section 12022.53 that were enacted after defendant’s original sentencing. The evaluation report attached to the Secretary’s letter indicated that defendant had been