People v. Chavez CA5

Filed 11/9/23 P. v. Chavez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085659 Plaintiff and Respondent, (Super. Ct. No. CF98612045) v.

DIMAS CLEMENTE CHAVEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Houry A. Sanderson, Judge.

John L. Staley, 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, Plaintiff and Respondent. -ooOoo-

*Before Peña, Acting P. J., Meehan, J. and Snauffer, J.

INTRODUCTION A jury previously convicted defendant Dimas Clemente Chavez of shooting at an inhabited dwelling (Pen. Code, § 246). (Undesignated statutory references are to the Penal Code.) Two strike conviction allegations and two prior prison term enhancements were found true (§ 667.5). The court sentenced defendant to 25 years to life in prison and stayed the prior prison term enhancements. In 2022, the court placed the matter on calendar after the California Department of Corrections and Rehabilitation (CDCR) notified the court defendant’s sentence contained prior prison term enhancements that had been invalidated. After ordering briefing from the parties and holding a hearing, the court concluded defendant was not entitled to recall of his sentence and resentencing because the trial court had stayed the two prison prior enhancements. In this appeal, the parties agree the trial court erred in concluding defendant was not eligible for resentencing. We agree the order should be vacated and conclude the matter must be remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL HISTORY In 1999, a jury convicted defendant of shooting at an inhabited dwelling (§ 246), and two prior prison enhancement allegations and two strike conviction allegations were found true. The court sentenced defendant to 25 years to life and imposed and stayed the two prison prior enhancements (§ 667.5, former subd. (b)). In August 2022, the superior court filed a notice of calendar setting for defendant after receiving notification from the Secretary of the CDCR that defendant was identified as a person in their custody serving a sentence that included an enhancement imposed pursuant to section 667.5, former subdivision (b). In November 2022, the court held a hearing during which defense counsel represented that defendant wanted to be present and that he requested a full resentencing hearing. In response, the prosecutor asserted defendant’s prison priors were stayed at sentencing, and he was not eligible for relief.