People v. Davis CA5

Filed 11/16/22 P. v. Davis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083448 Plaintiff and Respondent, (Super. Ct. No. F15903774) v.

ROBERT LEE DAVIS III, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Elisa A. Brandes, 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, Lewis A. Martinez, Kari Mueller, and Louis M Vasquez, Deputy Attorneys General, Plaintiff and Respondent. -ooOoo-

*Before Franson, Acting P. J., Peña, J. and De Santos, J.

A jury found Robert Lee Davis III (defendant) guilty on charges arising from a series of commercial robberies. In 2019, this court upheld the verdicts but remanded the case for a new sentencing hearing. Defendant now argues, and the People concede, further sentencing relief is warranted in light of Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). We agree with the parties. FACTUAL AND PROCEDURAL BACKGROUND Defendant was prosecuted for his role in several robberies committed in June 2015. The underlying facts are not relevant to this appeal, but a detailed summary can be found in People v. Islas (July 19, 2019, F075575) [nonpub. opn.]. The case was tried before a jury in October 2016. Defendant was convicted on eight counts of second degree robbery (Pen. Code, § 211; counts 1, 2, 3, 4, 7, 10, 11 & 12); two counts of attempted second degree robbery (§§ 211, 664; counts 5 & 6); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 8 & 9); and one count of unlawful firearm possession (§ 29800, subd. (a)(1); count 14). (All undesignated statutory references are to the Penal Code.) True findings were made on firearm enhancement allegations pursuant to section 12022, subdivision (a)(1) (counts 1, 2, 3, 5, 6, 10, 11 & 12) and section 12022.53, subdivision (b) (counts 4 & 7). Defendant admitted to having served a prior prison term within the meaning of section 667.5, former subdivision (b). He also pled no contest in a related matter (Super. Ct., Fresno County, 2016, No. F16906002) to a violation of section 136.1, subdivision (c)(1). On March 6, 2017, defendant was sentenced to an aggregate prison term of 28 years 4 months. The sentence included the upper terms for multiple counts and a one- year prior prison term enhancement. The trial court found as follows with regard to aggravating circumstances: