People v. Defelice CA2/6

Filed 2/26/24 P. v. Defelice CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No.B325106 (Super. Ct. No. 1492983) Plaintiff and Respondent, (Santa Barbara County)

v.

THOMAS DEFELICE,

Defendant and Appellant.

Thomas Defelice appeals a judgment following a resentencing hearing. In 2022, we affirmed his conviction for battery causing serious bodily injury (Pen. Code,1 § 243, subd. (d)) (count 1); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 2); corporal injury to a former cohabitant (§ 273.5, subd. (a)) (count 3), with jury findings that he inflicted serious bodily injury as to count 1, that he personally inflicted great bodily injury as to count 2 (§ 12022.7, subd. (a)),

1 All statutory references are to the Penal Code.

and that he inflicted great bodily injury under domestic violence circumstances as to count 3. (Id., subd. (e); People v. Defelice (Mar. 8, 2022, B307326) [nonpub. opn.].) The trial court sentenced him to a third strike, 25 years to life in prison, plus a consecutive 15 years. The 15-year sentence included the upper term of five years for the section 12022.7, subdivision (e), enhancement. Senate Bill No. 567 (2021-2022 Reg. Sess.) changed the standard for imposing upper terms. In our disposition we said, “The sentence is vacated and the case is remanded to the trial court for resentencing consistent with Senate Bill No. 567. Should the court impose the upper term, it should state [its] reasons for doing so. In all other respects, the judgment is affirmed.” (People v. Defelice, supra, B307326.) At the resentencing hearing, the trial court imposed the upper term again for the section 12022.7, subdivision (e), enhancement. We conclude, among other things, that 1) the court properly limited the scope of resentencing and Defelice was not entitled to a full resentencing; and 2) the court could reasonably find that Defelice waived his right to appear at the sentencing hearing. We affirm. FACTS On remand from our prior decision, the trial court held a short presentencing hearing in August 2022 and asked, “I am gathering that [Defelice] will be waiving his appearance and we’ll continue [the section] 977 [hearing]. Or do we need to have him brought down?” Defelice’s counsel said: “No, Your Honor. He can stay in state prison. It’s a relatively simple issue. He has a rather lengthy sentence.”