People v. Philyaw CA2/5

Filed 2/15/24 P. v. Philyaw CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B321244

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA447321) v.

ANTHONY Q. PHILYAW,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Reversed. Mary Jo Strand, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Anthony Q. Philyaw contends that the trial court, after granting his petition for habeas corpus, erred by denying his post-conviction motion for a full resentencing. We agree and reverse.

II. BACKGROUND

A. Conviction and Sentence

In 2016, a jury convicted defendant of two counts of assault with a deadly weapon (Pen. Code1, § 245, subd. (a)(1), counts 1 and 2), two counts of making criminal threats (§ 422, subd. (a), counts 4 and 5), false imprisonment by violence (§ 236, count 7), possession of a firearm by a felon (§ 29800, subd. (a)(1), count 9), and misdemeanor sexual battery (§ 243.4, subd (a), count 10). The jury found true the allegations that defendant personally used a firearm (§ 12022.5, subd. (a)) and committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The trial court found true the allegation that defendant had served six prior prison terms within the meaning of section 667.5, subdivision (b), and sustained a prior conviction for a serious or violent felony within the meaning of the Three Strikes law. On January 31, 2017, the trial court sentenced defendant to 31 years and four months in prison, plus 364 days in any penal institution. On count 1, the court sentenced defendant to the upper term of four years, doubled to eight years pursuant to the