People v. Vivero CA3

Filed 11/15/23 P. v. Vivero CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C096149

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- 2018-0015899) v.

LUIS FRANCISCO VIVERO,

Defendant and Appellant.

In October 2021, a jury found defendant Luis Francisco Vivero guilty of one count of attempted murder, one count of robbery, and three counts of assault with a semiautomatic firearm. The jury also found true numerous firearm enhancements associated with these counts. The jury determined Vivero was not guilty of the five remaining charged offenses. On January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) went into effect altering the methodology for selecting an

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appropriate triad term. (Pen. Code,1 § 1170, subd. (b); Stats. 2021, ch. 731, § 1.3.) Four months later, on May 2, 2022, the trial court sentenced Vivero to an aggregate prison term of 15 years. Vivero’s arguments on appeal are limited to the sentence imposed. He argues the trial court abused its discretion in: (1) misunderstanding its sentencing discretion because it failed to apply the presumption in favor of the lower term (§ 1170, subd. (b)(6)) applicable after Senate Bill 567; (2) violating section 1170, subdivision (b)’s limitations on the use of aggravating factors to “aggravate” his sentence from the low term to the midterm in violation of Senate Bill 567’s amendments (§ 1170, subd. (b)(2), (3), (6)); (3) utilizing aggravating factors prohibited by the dual use rule; and (4) failing to stay the robbery count as required by section 654. Finally, Vivero argues his counsel rendered ineffective assistance to the extent this court determines the first three arguments are forfeited for failure to object below. We concur with Vivero that section 654 applies to the punishment for his conviction for robbery and assault with a firearm of the victim A.A.2 Moreover, because the trial court has discretion in selecting which counts to stay pursuant to section 654, and in light of the trial court’s failure to impose a term to stay on the attempted murder count (see People v. Afford (2010) 180 Cal.App.4th 1463, 1466 [court must impose and then stay sentence pursuant to § 654]), we conclude that this matter must be remanded for a full resentencing hearing (People v. Jones (2022) 79 Cal.App.5th 37, 46). In light of this conclusion, we need not address Vivero’s remaining arguments on appeal. Nonetheless, we highlight our review has disclosed certain irregularities in the trial court’s imposition