People v. McCauley CA3

Filed 12/28/22 P. v. McCauley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C094806

Plaintiff and Respondent, (Super. Ct. No. 20CF04084)

v.

CORNELIUS EUGENE MCCAULEY,

Defendant and Appellant.

A jury found defendant Cornelius Eugene McCauley guilty of assault and battery and found true a great bodily injury enhancement. The trial court sentenced defendant to nine years in prison for assault, including the enhancement, and an upper term sentence of eight years in prison for battery, stayed pursuant to Penal Code section 654.1

1 Undesignated statutory references are to the Penal Code.

1

On appeal, defendant contends amendments to sections 654 and 1170, which took effect while his appeal was pending, apply retroactively to his case and require us to vacate his sentence and remand for resentencing. Defendant also contends the trial court failed to specify reasons for imposing the upper term sentence for battery, which likewise requires remand. The Attorney General concedes the amendments to section 654 require remand and defendant’s remaining contentions can be addressed at resentencing. We will vacate defendant’s sentence and remand for resentencing; we otherwise affirm the judgment. FACTS AND PROCEEDINGS A jury found defendant guilty of battery inflicting serious bodily injury (§ 243, subd. (d)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury also found true an allegation that defendant inflicted great bodily injury in committing the assault. (See § 12022.7, subd. (a).) In a bifurcated court trial, the court found true the allegation that defendant had previously been convicted of a violent felony. (See § 667.5, subd. (c)(9).) The trial court sentenced defendant for this case together with two other cases, in which he had pled guilty to three counts of vehicle burglary. The court noted several aggravating circumstances: Defendant had a significant criminal history (Cal. Rules of Court, rule 4.421(b)(2))2; had been unsuccessful on probation and postrelease community supervision (rule 4.421(b)(5)); and had committed violent offenses (rule 4.421(a)(1), (b)(1)). The trial court imposed an aggregate sentence of 11 years in prison. The court sentenced defendant to the middle term of three years in prison for the assault, which was the designated principal term under the version of section 654 in effect at the time. (See