People v. Quigley CA5

Filed 10/19/22 P. v. Quigley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082760 Plaintiff and Respondent, (Super. Ct. No. LF012937A) v.

JASON LEE QUIGLEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Jan B. Norman, 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, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Smith, J. and Snauffer, J.

Defendant Jason Lee Quigley contends on appeal that (1) his sentence must be vacated and his case remanded for resentencing in light of Senate Bill No. 567 (2021– 2022 Reg. Sess.) (Senate Bill 567), which modified Penal Code section 1170, subdivision (b);1 and (2) his defense counsel was ineffective in failing to object to the upper term sentences for counts 1 and 3. We vacate defendant’s sentence and remand for resentencing in light of amended section 1170, subdivision (b). In all other respects, we affirm. PROCEDURAL SUMMARY On July 15, 2020, the Kern County District Attorney filed an information charging defendant with kidnapping (§ 207, subd. (a); count 1); assault (§ 245, subd. (a); count 2); inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); count 3); making a criminal threat (§ 422; count 4); and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364; count 5). As to count 1, the information further alleged that defendant had used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1). As to count 3, it was also alleged that defendant had suffered a prior conviction under section 273.5, subdivision (f)(1). The information further alleged that defendant had suffered a prior “strike” within the meaning of the “Three Strikes” Law. (§§ 667, subds. (b)–(i), 1170, subds. (a)–(d).) On March 5, 2021, a jury convicted defendant of count 3 (§ 273.5), count 5 (Health & Saf. Code, § 11364), and false imprisonment (§ 236), a lesser-included offense of count 1. The jury did not reach a verdict on counts 2 and 4. The jury did not render a verdict on the knife use allegation since it acquitted on count 1 as charged. The trial court declared a mistrial on counts 2 and 4. In a separate proceeding, the trial court found true both prior conviction allegations.