People v. Bain CA5

Filed 9/6/22 P. v. Bain 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083498, F083499 Plaintiff and Respondent, (Super. Ct. Nos. F20907735, v. F20905361)

THOMAS BAIN, OPINION Defendant and Appellant.

THE COURT* APPEAL from judgments of the Superior Court of Fresno County. Monica R. Diaz, Judge. John L. Staley, 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, Darren K. Indermill, Jeffrey D. Firestone, Louis M. Vasquez, Kari Mueller and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Thomas Bain pled no contest to two counts of stalking while subject to a restraining order (charged in two separate cases). He was sentenced to a total term of five years’ imprisonment, which included an upper term sentence on one count of conviction. On appeal, defendant contends that his sentence must be vacated, and his case remanded for resentencing in light of Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code section 1170, subdivision (b).1 The People concede the issue. We accept the People’s concession, vacate defendant’s sentence, and remand for resentencing consistent with amended section 1170, subdivision (b). In all other respects, we affirm. PROCEDURAL SUMMARY On June 14, 2021, the Fresno County District Attorney filed an information in Fresno County Superior Court case No. F20905361, charging defendant with stalking while subject to a restraining order (§ 646.9, subd. (b); count 1), and four counts of misdemeanor disobeying a domestic relations restraining order (§ 273.6, subd. (a); counts 2–5). The information further alleged defendant suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On the same date, the Fresno County District Attorney filed an information in Fresno County Superior Court case No. F20907735, charging defendant with stalking while subject to a restraining order (§ 646.9, subd. (b); count 1), and 11 counts of misdemeanor contempt of a court by violating a domestic violence restraining order (§ 166, subd. (c)(1); counts 2–12). As to count 1, the information alleged that defendant was on release from custody on bail or on his own recognizance on the date he committed the offense. The information further alleged defendant suffered a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).