People v. Fregozo CA5

Filed 9/9/22 P. v. Fregozo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083127 Plaintiff and Respondent, (Super. Ct. No. F18900893) v.

ROBERTO FREGOZO, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. William J. Capriola, 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, Christopher J. Rench and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Detjen, J. and DeSantos, J.

Defendant Roberto Fregozo was found guilty of attempted voluntary manslaughter. He was sentenced to a total term of 24 years’ imprisonment, which included upper term sentences on the count of conviction and on an enhancement. 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 19, 2018, the Fresno County District Attorney filed a first amended information, charging defendant with attempted murder (§§ 664/187, subd. (a); count 1). As to count 1, the first amended information further alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and personal use of a firearm (§ 12022.5, subd. (a)). The first amended 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)) and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).2

1 All statutory references are to the Penal Code. 2 The first amended information further alleged that defendant had served two prior prison terms (§ 667.5, former subd. (b)) for violations of section 273.5 and 211, neither of which was a sexually violent offense. On October 8, 2019, the Governor signed Senate Bill No. 136, which amended section 667.5, effective January 1, 2020. (2019–2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 narrowed eligibility for the one-year prior prison term enhancement to those who have served a prior prison sentence for a sexually violent offense. (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) On June 10, 2021, the trial court dismissed both prior prison term enhancements on the People’s motion.