People v. Donaldson CA3

Filed 1/25/23 P. v. Donaldson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Glenn) ----

THE PEOPLE,

Plaintiff and Respondent, C094861

v. (Super. Ct. No. 20CR15496)

JASON GARY DONALDSON,

Defendant and Appellant.

A jury convicted defendant Jason Gary Donaldson of forcible oral copulation, making criminal threats, and inflicting corporal injury upon a cohabitant. With respect to the latter offense, defendant admitted having a previous conviction for the same offense within seven years. Defendant further admitted having a previous conviction for making criminal threats, a strike offense within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and also a serious felony within the meaning of section 667, subdivision (a). The trial court sentenced defendant to serve an aggregate determinate term of 25 years in state prison and, in two other cases (20CR15059 and 20CR15026), resentenced defendant to consecutive determinate terms of one year and

1 Undesignated statutory references are to the Penal Code.

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eight months, respectively. The abstract of judgment identifies the total time as 26 years eight months. Defendant now contends (1) Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill 567) applies retroactively to his case and requires remand for resentencing, and (2) the sentencing minute order and abstract of judgment must be corrected to award the correct amount of custody credit. The Attorney General agrees with the first contention and argues we need not address the second because remand for resentencing is required. We agree with the Attorney General. We will vacate the sentence and remand the matter for resentencing consistent with current law. BACKGROUND In August 2020, defendant and A. lived together in a tent outside Orland in Glenn County. On the 18th of that month, they stayed the night at defendant’s mother’s house. That night, during an argument, defendant straddled A., placed both hands around her neck, and strangled her while threatening to kill her. A. believed the threat was serious and was afraid for her life. A. briefly lost consciousness, but managed to push or kick defendant off of her, which prompted defendant to headbutt her, causing a black eye. The next day, defendant forced A. to orally copulate him against her will, then punched her in the back of the head, causing a laceration. Later in the day, defendant kicked her in the face, causing a cut on her nose. A. left defendant’s mother’s house and reported the circumstances to a sheriff’s deputy. The deputy took photos of A.’s injuries. The jury convicted defendant of forcible oral copulation, making criminal threats, and inflicting corporal injury upon a cohabitant. Defendant admitted having a prior domestic violence conviction within the previous seven years as well as a prior strike conviction. At the sentencing hearing, the trial court imposed the upper term sentence for the forcible oral copulation. The trial court based the upper term on findings that the crime