People v. Mulato CA5

Filed 6/30/23 P. v. Mulato 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085148 Plaintiff and Respondent, (Super. Ct. No. CRF55581) v.

MARTIN F. MULATO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Rachel Varnell, 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, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.

INTRODUCTION The convictions in this case arose out of a fight in state prison in 2017, during which defendant Martin F. Mulato and another inmate attacked a third inmate.1 Defendant appeals following remand of this matter to the trial court to conduct a full resentencing hearing. Defendant claims that this matter must again be remanded to the trial court for recalculation of his actual custody credits and that the abstract of judgment must be corrected to reflect imposition of a great bodily injury (GBI) enhancement pursuant to Penal Code section 12022.7, subdivision (a), rather than subdivision (i).2 The People concede error with respect to both claims. For the reasons set forth below, we remand the matter to the trial court to recalculate defendant’s actual custody credits through the date of the 2022 resentencing hearing.3 The trial court shall then issue an amended abstract of judgment with the updated custody credits and correction of the enhancement to subdivision (a) of section 12022.7. We also direct the trial court to correct the date of the hearing in the caption to reflect the date of the resentencing hearing in 2022 and to reflect that the 2022 hearing was a resentencing following appeal. The judgment is otherwise affirmed. PROCEDURAL BACKGROUND Defendant was charged with two felonies, assault by a prisoner with a deadly weapon (fists) and with force likely to produce GBI, with an attached sentence enhancement for personal infliction of GBI (count 1), and battery with infliction of serious bodily injury (count 2). (§§ 4501, 12022.7, subd. (a), 243, subd. (d).) The