People v. Fontanilla CA5

Filed 10/26/22 P. v. Fontanilla 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083173 Plaintiff and Respondent, (Super. Ct. No. F16906751) v.

JEFFREY FLOYD FONTANILLA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Carlo Andreani, 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, Kari Ricci Mueller and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

BACKGROUND1 Appellant Jeffrey Floyd Fontanilla was convicted of two counts of forcible lewd acts upon a child (Pen. Code,2 § 288, subd. (b)(1) [counts 2 & 6]), one count of attempted forcible lewd acts upon a child (§§ 288, subd. (b)(1), 664 [count 3]), and one count of sodomy with a child 10 years of age or younger (§ 288.7, subd. (a) [count 10]). The trial court imposed an aggregate sentence of 25 years to life plus six years, eight months: 25 years to life on count 10; two years, eight months on count 2; two years, eight months on count 6; and one year, four months on count 3. In an opinion filed on March 25, 2021, we reversed Fontanilla’s conviction and sentence on count 10 on ex post facto grounds and remanded the matter for resentencing on the remaining counts. At a June 22, 2021 resentencing hearing, the trial court imposed an aggregate sentence of 14 years: 10 years on count 2; two years, eight months on count 6; and one year, four months on count 3. Regarding the punishment on count 2, the court selected the “aggravated term” instead of the lower term (five years) or middle term (eight years) “based upon Mr. Fontanilla’s criminal history” as “detailed in the probation report.”3 (See § 288, subd. (b)(1).)

1 On our own motion, we take judicial notice of a prior nonpublished opinion (People v. Fontanilla (Mar. 25, 2021, F077227)), from which we obtain the facts set forth in the first paragraph of this section. Citation thereto “is permitted by California Rules of Court, rule 8.1115(b)(1) ‘to explain the factual background of the case and not as legal authority.’ ” (In re W.R. (2018) 22 Cal.App.5th 284, 286–287, fn. 2.) 2 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code. 3The probation report specified that Fontanilla had been convicted of driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)); involuntary manslaughter (§ 192, subd. (b)); unlawful sexual intercourse with a minor under 16 years of age (§ 261.5, subd. (d)); willful infliction of corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a)) on two separate occasions; hit-and-run property damage (Veh. Code, § 20002, subd. (a)); and assault with a deadly weapon (§ 245, subd. (a)(1)). In addition, Fontanilla violated parole at least five times.