People v. Smith CA5

Filed 2/14/23 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082143 Plaintiff and Respondent, (Super. Ct. No. BF175303A) v.

NATHAN MIKEL WAYNE SMITH, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Meehan, J.

INTRODUCTION Appellant and defendant Nathan Mikel Wayne Smith was convicted by a jury of two first degree burglaries with persons present in the residence at the time of the offenses. In his companion case, case No. F081895, defendant was convicted of multiple counts of possession of a stolen vehicle, felon in possession of a firearm, felon in possession of ammunition, possession of a concealable firearm while not the registered owner, carrying a loaded firearm in a public place, and possession of stolen property. On appeal, defendant contends the case should be remanded for resentencing in light of the recent amendment to Penal Code section 1170, subdivision (b),1 which generally mandates the middle term as the presumptive sentence for a term of imprisonment unless certain circumstances, other than a prior conviction, have been stipulated to or found true beyond a reasonable doubt. Defendant also requests that this court review the trial court’s Pitchess2 motion ruling to determine whether the trial court abused its discretion by declining to disclose any records. The People agree that the case should be remanded for the trial court to conduct a resentencing hearing consistent with section 1170, subdivision (b), as amended, and they also agree that this court can independently review the sealed materials in connection with defendant’s Pitchess motion. FACTUAL BACKGROUND Prosecution Evidence On December 24, 2018, Joseph M. was awakened by his wife, April M., at approximately 5:00 a.m. Joseph rolled out of bed and grabbed a firearm after he observed a flashlight shining into their bedroom. Joseph walked to the garage attached to his residence and found the main garage door and side door were both open. The main