People v. Marcus CA3

Filed 2/10/23 P. v. Marcus CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C095769

Plaintiff and Respondent, (Super. Ct. No. 17FE010993)

v.

DEMETRIOUS MONTRAIL MARCUS,

Defendant and Appellant.

This is defendant Demetrious Montrail Marcus’s second appeal. In our prior opinion, People v. Marcus (2020) 45 Cal.App.5th 201 (Marcus), we affirmed defendant’s convictions but remanded for resentencing. On remand, the trial court resentenced defendant to 20 years in prison and, in doing so, it doubled the base sentence for defendant’s convictions pursuant to the Three Strikes law. In this appeal, defendant argues that the trial court failed to properly construe the Three Strikes law as a “sentencing enhancement” under the recently enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill 81). Defendant also argues, and the

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People concede, that the abstract of judgment must be corrected to accurately reflect the trial court’s oral pronouncement of defendant’s updated custody credits and fees. We affirm. However, we will direct the trial court to issue a corrected abstract of judgment to properly reflect the oral pronouncement of judgment. BACKGROUND FACTS AND PROCEDURE A recitation of the underlying facts is not necessary to resolve this appeal. We accordingly briefly restate the factual summary from defendant’s prior appeal: “Defendant . . . and an accomplice broke into an apartment occupied by an elderly couple and other family members. After robbing the victims at gunpoint, defendant and his partner left with various property and were chased by the son and grandson; the son was shot during the chase.” (Marcus, supra, 45 Cal.App.5th at p. 206.) Following trial, a jury found defendant guilty of two counts of first degree robbery (Pen. Code, § 211);1 assault with a firearm (§ 245, subd. (a)(2); and being a felon in possession of a firearm. (§ 29800, subd. (a)(1).) (Marcus, supra, 45 Cal.App.5th at p. 207.) The jury also found true that defendant personally used a firearm for each count. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) (Marcus, at p. 207.) In a bifurcated proceeding, the jury found that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term. (§ 667.5, former subd. (b).) (Marcus, at p. 207.) At sentencing, the trial court denied defendant’s Romero2 motion and sentenced him to 29 years in prison, which included (in relevant part) a four-year term for the first robbery, doubled to eight years for the prior strike, and a consecutive term of one year four months for the second robbery, doubled to two years eight months for the prior