People v. Tellez CA4/3

Filed 10/31/23 P. v. Tellez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062290

v. (Super. Ct. No. 17CF2601)

RUBEN RAMIREZ TELLEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

Ruben Ramirez Tellez appeals from the trial court’s judgment after it resentenced him. Tellez argues the court erred by imposing the upper term on the deadly weapon enhancement and the court erred by failing to award him additional actual custody credits. The Attorney General agrees with both arguments. We again reverse and remand for resentencing. FACTS The facts are taken from our prior nonpublished opinion, People v. Tellez (May 2, 2022, G059713) (Tellez). “Tellez noticed a homeless woman outside a restaurant in Orange. He offered to let her take a shower in his nearby motel room, and she accepted. After showering and getting dressed, the woman exited the bathroom to find Tellez lying on the bed wearing only a T shirt and boxer shorts. When she indicated she wanted to leave, Tellez became angry and stood by the door, impeding her ability to get out of the motel room. While she was sitting on the bed’s edge, Tellez walked up behind her and hit her in the back of the head with a metal flashlight. Everything went blurry for a second, but she managed to stand up. Tellez grabbed her in a bear hug, trying to get her back on the bed. He picked up a three-inch knife. After a brief struggle, the woman managed to escape, ran down the street, and called the police. When the paramedics were treating her, she realized she had been stabbed in the stomach.” A jury convicted Tellez of the following: assault with the intent to commit 1 a sexual offense (Pen. Code, § 220, subd. (a)(1); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); and felony false imprisonment (§§ 236, 237, subd. (a); count 3). As to counts 1 and 3, the jury found true Tellez used a deadly weapon. (§§ 12022.3, subd. (a), 12022, subd. (b)(1).)