People v. Cross CA3

Filed 12/11/23 P. v. Cross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095957

Plaintiff and Respondent, (Super. Ct. No. 21FE009616)

v.

JEFFREY MARTIN CROSS,

Defendant and Appellant.

Among other charges, a jury found defendant Jeffrey Martin Cross guilty of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)),1 and in bifurcated proceedings also found he suffered two prior serious felony convictions (§ 667, subd. (a)). The trial court sentenced Cross to an aggregate term of 26 years, plus

1 Undesignated statutory references are to the Penal Code.

1

25 years to life, which included two five-year prior serious felony enhancements (§ 667, subd. (a)) on the assault conviction. On appeal, Cross contends, and the People agree, that the trial court erred in imposing the five-year prior serious felony enhancements on the assault with force likely to produce great bodily injury conviction, as that is not a serious felony. Cross also contends trial counsel rendered ineffective assistance of counsel by failing to ask the trial court to dismiss the prior serious felony enhancements under amended section 1385, subdivision (c) and the abstract of judgment incorrectly reflects a conviction under section 245, subdivision (a)(1) rather than section 245, subdivision (a)(4), and must be corrected. We agree with the parties that the trial court erred in imposing two five-year prior serious felony enhancements on the assault with force likely to produce great bodily injury. Accordingly, we will strike those enhancements, vacate the sentence, and remand the matter for a full resentencing. Based on this disposition, we need not address Cross’s remaining claims. BACKGROUND Bill H. and Ben G. were friends living in a homeless camp. They both also knew Cross, who camped near them and came by their camp daily. Early one morning, Cross attacked Bill H. while he was in his sleeping bag. Cross hit and kicked Bill H. repeatedly, and Ben G. saw Cross pick up a wooden stool and hit Bill H. with it. Bill H. was knocked unconscious and suffered bruised and cracked ribs. Later that morning, Cross returned to the camp and Cross and Bill H. argued. Cross told Bill H. and Ben G. that he if was going back to prison for the rest of his life, it would be for a reason. Bill H. took this as a threat to kill him. A jury found Cross guilty of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), making criminal threats (§ 422), and dissuading a witness (§ 136.1, subd. (c)). In bifurcated proceedings, the jury also found Cross had suffered