People v. Chavez CA2/5

Filed 3/15/24 P. v. Chavez CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B323762

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA084148) v.

RAUL CHAVEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Reversed. California Appellate Project, Richard B. Lennon and Sydney Banach, 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, Steven E. Mercer and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

I. BACKGROUND

In 2007, a jury found defendant Raul Chavez guilty of: one count of first degree burglary (Pen. Code,1 § 459, count one); six counts of attempted robbery (§§ 664, 211, counts two through seven); and one count of assault with a deadly weapon (§ 245, subd. (a)(1), count eight). The jury found true allegations that defendant personally used a firearm during the commission of counts one through seven. (§§ 12022.5, subd. (a), 12022.53, subd. (b).) The trial court sentenced defendant to a total of 35 years, eight months in prison, which included a 10-year enhancement under section 12022.5, subdivision (a) for count one, and consecutive three year and four month enhancements for each of counts three to seven. The court stayed the sentence on count two. In a letter dated April 17, 2019, the Secretary of the California Department of Corrections and Rehabilitation (Secretary) recommended that the trial court recall defendant’s sentence pursuant to former section 1170, subdivision (d).2 The Secretary noted that amendments to section 12022.53, subdivision (h), which became effective January 1, 2018, now permitted sentencing courts discretion to strike personal use firearm enhancements at sentencing pursuant to section 1385.