People v. Smith CA4/3

Filed 12/18/23 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061771

v. (Super. Ct. No. FWV035340)

TERRYANCE ACEY SMITH, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Ingrid Adamson Uhler, Judge. Affirmed. Kenneth H. Nordin, 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, Eric A. Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Terryance Acey Smith appeals from a judgment after the trial court resentenced him. Smith argues the court erred by denying his request to strike one strike 1 pursuant to Penal Code section 1385 as amended by Senate Bill No. 81 (2021-2002 Reg. Sess.) (SB 81). We disagree and affirm the judgment. FACTS In 2006, a jury convicted Smith of 33 felony counts: 13 counts of robbery (§ 211), 14 counts of false imprisonment (§ 236), and six counts of dissuading a witness (§ 136.1, subd. (c)(1)). As to all the counts, the jury found true that Smith was a principal armed with a firearm under section 12022, subdivision (a)(1). At a bench trial, the trial court found four strike allegations to be true. The court sentenced Smith to prison for 380 years 8 months to life. We affirmed. (People v. Smith (Dec. 29, 2008, G040872) [nonpub. opn.].) In 2014, Smith filed a petition for resentencing under section 1170.126. The trial court denied the petition reasoning section 1170.126 did not apply and Smith was ineligible for resentencing. We reversed and remanded for further proceedings because Smith was not ineligible for resentencing based on an intervening decision from our Supreme Court, People v. Johnson (2015) 61 Cal.4th 674. (People v. Smith (Jan. 15, 2016, G050533) [nonpub. opn.].) In 2019, Smith filed a petition for writ of habeas corpus arguing among other things he was entitled to resentencing pursuant to People v. Vargas (2014) 59 Cal.4th 635. At a hearing where Smith was not present because he was not transported due to the coronavirus disease 2019, the trial court accepted the prosecution’s concession that Vargas applied and ruled it would consider the case “a two-strike case.” The court resentenced Smith to 42 years 4 months in prison. (People v Smith (Dec. 14,