People v. Venegas CA2/6

Filed 11/14/22 P. v. Venegas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B317662 (Super. Ct. No. BA441768) Plaintiff and Respondent, (Los Angeles County)

v.

CARLOS ANTONIO VENEGAS,

Defendant and Appellant.

Carlos Antonio Venegas appeals from an order denying a recommendation by the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his 2016 sentence and resentence him pursuant to Penal Code section 1170, former subdivision (d)(1).1 The People concede that the order “should be reversed and the matter should be remanded for a new hearing under section 1172.1” We accept the concession and reverse.

1 All statutory references are to the Penal Code.

Appellant’s Sentence In January 2016 appellant pleaded guilty to second degree robbery. (§§ 211, 212.5, subd. (c).) He admitted one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and two prior strikes within the meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d).) The court dismissed one of the strikes. It sentenced appellant to prison for three years for second degree robbery, doubled to six years because of the prior strike, plus five years for the prior serious felony conviction. Appellant’s aggregate sentence was 11 years. CDCR Secretary’s Recommendation Letter The CDCR Secretary’s recommendation letter concerned the trial court’s imposition of the five-year enhancement pursuant to section 667, subdivision (a)(1). The Secretary stated: “Courts were previously barred from striking prior serious felony convictions for purposes of enhancement . . . . However, effective January 1, 2019, courts are now authorized to exercise their discretion to strike prior serious felony convictions for purposes of enhancement . . . , or to strike the punishment for the enhancement . . . , pursuant to PC section 1385. [¶] In Iight of the court’s newfound authority to not impose a consecutive enhancement pursuant to PC section 667, subdivision (a)(1) . . . , and after personally reviewing [appellant’s] commitment offense and in-prison conduct, I recommend that [appellant’s] sentence be recalled and that he be resentenced in accordance with PC section 1170, subdivision (d)(1).” The Secretary’s recommendation letter was filed in the superior court in September 2021. At that time section 1170, former subdivision (d)(1) provided that, after a defendant has