People v. Gaeta CA2/1

Filed 3/7/24 P. v. Gaeta CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B330235

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA058056) v.

BRYAN THOMAS GAETA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Juan Carlos Dominguez, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. _______________________________

In April 2003, a jury found Bryan Thomas Gaeta guilty of burglary (Pen. Code,1 § 459) and found true the special allegation that the victim was present inside the residence at the time of Gaeta’s entry, rendering the offense a violent felony under section 667.5, subdivision (c). The trial court heard and denied Gaeta’s motion to dismiss a prior strike conviction under People v. Romero (1996) 13 Cal.4th 497 and to sentence him as a second strike offender pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court sentenced him to 35 years to life: 25 years to life for the third strike, plus 10 years for two prior serious felony enhancements under section 667, subdivision (a)(1) (five years each). On March 1, 2022, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the superior court, recommending the court recall Gaeta’s sentence pursuant to former section 1170.03, subdivision (a)(1) (since renumbered § 1172.1)2 and consider whether to exercise its discretion to dismiss the section 667, subdivision (a)(1) prior serious felony enhancements. The court did not have such discretion in 2003 when Gaeta was originally sentenced in this case. Defense counsel filed a memorandum in support of resentencing, asking the trial court to dismiss the two prior