People v. Cole CA3

Filed 2/24/23 P. v. Cole CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C094724

Plaintiff and Respondent, (Super. Ct. No. 62-176724)

v.

TYLER LERAY COLE,

Defendant and Appellant.

A jury found defendant Tyler LeRay Cole guilty of assault by means of force likely to produce great bodily injury, willful infliction of corporal injury resulting in a traumatic condition on a victim with whom defendant had a dating relationship and a child, and dissuading a witness or victim from prosecuting a crime. The trial court sentenced defendant to the upper term of four years on the willful infliction of corporal injury count and a consecutive term of two years on the dissuading a witness or victim count, and imposed and stayed the upper term of four years for assault by means of force likely to produce great bodily injury.

1

On appeal, defendant asserts he is entitled to resentencing as a result of changes made to Penal Code section 11701 by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731), which, he asserts, operates retroactively. Defendant further asserts that failure to retroactively apply Senate Bill No. 567 would violate equal protection principles and that the sentence imposed on the charge of dissuading a witness or victim was unlawful because the trial court was unaware of its discretion pursuant to section 1170.15 to impose a concurrent term. The Attorney General concedes defendant is entitled to resentencing based on Senate Bill No. 567, and we agree. Accordingly, we shall remand for full resentencing. As a result, we need not address defendant’s other contentions. FACTUAL AND PROCEDURAL BACKGROUND The prosecution charged defendant in an information with assault with a deadly weapon (§ 245, subd. (a)(1); count one), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count two), willful infliction of corporal injury resulting in a traumatic condition on a victim with whom defendant had a dating relationship and a child (§ 273.5, subd. (a); count three), and dissuading a witness or victim from prosecuting a crime (§ 136.1, subd. (b)(2); count four). The information further alleged defendant had sustained a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and that he had sustained a prior serious or violent felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). A detailed recitation of the underlying facts is not necessary to the resolution of this appeal, the following summary suffices. On the night of December 27, 2020, a motorist and his passenger came upon the victim on the side of the road. She claimed