People v. Reyes CA5

Filed 3/13/23 P. v. Reyes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084388 Plaintiff and Respondent, (Super. Ct. No. DF013968A) v.

JOSE REYES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge. Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Jose Reyes pled no contest to possession of drug paraphernalia in prison and admitted having suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law. Defendant also entered a waiver pursuant to People v. Cruz (1988) 44 Cal.3d 1247, whereby he was permitted to remain free of custody until his sentencing and the trial court indicated that, if defendant obeyed all laws and appeared for sentencing, it would grant him a term of probation. Defendant failed to appear for sentencing and was convicted of another offense. Roughly three years four months later, the trial court imposed the upper term of six years in prison, consecutive to the sentence for the offense defendant committed while released on the Cruz waiver, and imposed a $10,000 restitution fine. On appeal, defendant contends that the trial court erred in (1) imposing a fully consecutive six-year term and (2) imposing a $10,000 restitution fine based on defendant’s violation of the Cruz waiver (rather than the facts of the offense). The People agree on both accounts. We vacate defendant’s sentence and remand for resentencing. In all other respects, the judgment is affirmed. PROCEDURAL SUMMARY On December 6, 2018, the Kern County District Attorney filed a criminal complaint charging defendant with possession of heroin while incarcerated in state prison (Pen. Code, § 4573.6;1 count 1) and possession of a “hypodermic syringe and/or spoon” while incarcerated in state prison (§ 4573.6; count 2). The complaint further alleged as to both counts that defendant had suffered a prior felony strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On December 17, 2018, the prosecutor moved to amend the complaint to also charge defendant with possession of drug paraphernalia in prison (§ 4573.8; count 3). On the same date, pursuant to a negotiated plea agreement, defendant pled no contest to count 3 and admitted the prior strike conviction, in exchange for dismissal of counts 1