People v. Espinosa CA5

Filed 7/26/22 P. v. Espinosa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083105 Plaintiff and Respondent, (Super. Ct. No. F19903199) v.

SHAUN MICHAEL ESPINOSA, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Jennifer A. Mannix, 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, Lewis A. Martinez, Kari Mueller and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.

Defendant Shaun Michael Espinosa contends on appeal that his case should be remanded for resentencing to permit the trial court to exercise its new discretion under Penal Code section 654,1 as amended by Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Assembly Bill 518) to determine which of his sentences should be stayed. The People agree. 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 section 1170, subdivision (b), 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 by the jury (or the court in a bench trial) or be stipulated to by the defendant. (Ibid.) Defendant contends his sentences on counts 2, 7, 8, 9, 10, 11, 12, 16, and 19 must be vacated and his case remanded for resentencing in light of Senate Bill 567’s amendments to section 1170, subdivision (b). We vacate defendant’s sentence and remand for a full resentencing. In all other respects, we affirm. PROCEDURAL SUMMARY On August 6, 2020, the Fresno County District Attorney filed an information charging defendant with 24 counts: stalking (§ 646.9, subd. (a); count 1); first degree burglary with a nonaccomplice present (§§ 459/460, subd. (a), 667.5, subd. (c)(21); count 2); five counts of attempted first degree residential robbery (§§ 664/211; counts 3–7); five counts of assault with a firearm (§ 245, subd. (a)(2); counts 8–12); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 13); battery with serious bodily injury (§ 243, subd. (d); count 14); two counts of battery (§ 243, subd. (e)(1); counts 15 & 20); two counts of evading an officer (Veh. Code, § 2800.2, subd. (a); counts 16 & 24); driving the wrong way while evading an officer (Veh. Code § 2800.4;