People v. Irvin CA5

Filed 7/5/23 P. v. Irvin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084806 Plaintiff and Respondent, (Super. Ct. No. LF012027A) v.

LARRY WILLIAM IRVIN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge. Randall Conner, 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, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.

INTRODUCTION This is the second appeal by defendant Larry William Irvin after he was convicted by a jury of multiple counts of domestic violence, assault, violation of a restraining order, and assault with a deadly weapon. The trial court sentenced defendant to a total of 11 years in state prison: the upper term of five years for corporal injury resulting in a traumatic condition (count 2), one year (one-third the midterm) for assault with a deadly weapon (count 5), and five years for the great bodily injury enhancement. In the previous appeal, we remanded to the trial court for resentencing in light of newly enacted Assembly Bill No. 518 (2021–2022 Reg. Sess.) and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567). Following a remand for resentencing, defendant was again sentenced by the trial court to a total of 11 years in state prison—the upper term of five years on count 2 plus five years (upper term) for the great bodily injury enhancement, and one year (one-third the midterm) on count 5. In the present appeal, defendant contends the matter should be remanded due to the trial court’s reliance on improper information in imposing the upper term sentence for count 2. Defendant also asserts the trial court was not authorized to impose the upper term on the great bodily injury enhancement absent a stipulation or finding by a jury pursuant to amended Penal Code section 1170.1.1 We agree with defendant that he is entitled to resentencing based upon the lack of a required finding or stipulation to support imposition of the upper term on the enhancement. FACTS On October 31, 2018, after a jury trial, defendant was convicted of count 2, corporal injury resulting in a traumatic condition upon the confidential victim (C.V.) (§ 273.5, subd. (a)), a felony; count 3, assault on C.V. by means likely to produce great bodily injury (§ 245, subd. (a)(4)), a felony; count 4, violation of a restraining order