People v. Gayle CA3

Filed 7/5/23 P. v. Gayle CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C097088

v. (Super. Ct. No. 20FE008822)

ERIC VICTOR GAYLE,

Defendant and Appellant.

The trial court found defendant Eric Victor Gayle guilty of assault with a deadly weapon, assault by means of force likely to produce great bodily injury and found he had a 2009 strike conviction for battery in which he stabbed the victim in the abdomen. Defendant here appeals from a remand for resentencing that was due to him being improperly sentenced out of his presence. He argues the trial court should have dismissed the five-year serious felony enhancement under Penal Code section 667, subdivision (a),1 because of changes to section 1385, subdivision (c) brought about by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81) (Stats. 2021, ch. 721). Finding that the trial court acted within its discretion, we affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND An amended information charged defendant with assault with a deadly weapon (§ 245, subd. (a)(1)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The information also alleged defendant had a strike conviction in February 2009 for battery with serious bodily injury (§§ 243, subd. (d), 12022.7). (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12.) The underlying facts of the current crimes were that defendant went to the front yard of his father’s house. When his father told defendant to leave and defendant refused, defendant’s sister approached the two. Defendant ran into the house, grabbed a knife, and started waving it around. Defendant then sat on the couch, speaking of evil spirits and demanding that his sister pay him $20,000 to leave the house. Next, defendant stood up, headbutted her, stabbed her right hand and ran outside. After a bench trial, the court found defendant guilty of both counts and found the enhancement true. The trial court sentenced defendant to the upper term of four years on the assault with a deadly weapon count doubled due to his strike conviction, a stayed three-year term on the other assault charge doubled due to his strike conviction, plus a five-year term for the serious felony enhancement for a total of 13 years in prison. Defendant appealed, and this court vacated his original sentence and remanded the matter for a full resentencing because the trial court improperly sentenced defendant out of his presence. (People v. Gayle (Nov. 4, 2021, C093272) [nonpub. opn].) In his resentencing memorandum, defendant argued the trial court must dismiss the enhancements pursuant to changes Senate Bill 81 made to section 1385. Defendant reiterated these arguments in a separate motion to dismiss his strike conviction and the five-year serious felony enhancement pursuant to section 1385 and provided the new language of the statute to the trial court. He argued the trial court should dismiss his strike conviction and section 667, subdivision (a) enhancement because that crime was committed when he was a juvenile (this was actually a mistake because defendant was