People v. Alamillo CA6

Filed 4/2/24 P. v. Alamillo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050449 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F25449)

v.

HERMILO FERNANDEZ ALAMILLO,

Defendant and Appellant.

Appellant Hermilo Fernandez Alamillo was charged with assault with a deadly weapon (Pen. Code § 245, subd. (a)(1))1 but was ultimately found not guilty by reason of insanity (NGI) and committed to a state hospital. In 2022, the trial court extended Alamillo’s commitment for an additional two years pursuant to section 1026.5, subdivision (b).2 Although Alamillo filed a notice of appeal from the extension order, he does not identify an error in the recommitment proceedings. Instead, Alamillo argues that his maximum term of commitment, which had expired before the recommitment hearing in 2022, should have been reduced by one year pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) and Senate Bill No. 483 (2021-2022 Reg. Sess.). We conclude the issue is moot and dismiss the appeal.

1 Unspecified statutory references are to the Penal Code. Section 1026.5, subdivision (b), provides for extended two-year commitments 2

beyond the maximum term if the person “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (Id., subd. (b)(1).)

I. BACKGROUND3 In 2014, Alamillo was charged by information with one felony count of assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and two felony counts of battery upon a custodial officer (§ 243.1; counts 4 and 5). Alamillo was also charged with two misdemeanors: resisting, obstructing or delaying a peace officer (§ 148, subd. (a); count 2) and assault upon a custodial officer (§ 241.1; count 3). The information alleged as to count 1 that Alamillo had suffered a prior serious conviction within the meaning of section 667, subdivision (a)(1). As to counts 1, 3, 4 and 5, the information alleged that Alamillo had served a prior prison term within the meaning of section 667.5, subdivision (b) and that he had suffered a prior strike conviction within the meaning of section 667, subdivisions (b) through (i). Alamillo pleaded not guilty and NGI to all counts and waived his right to a jury trial. The district attorney dismissed counts 2 through 5. After considering the evidence, the court found Alamillo guilty on count 1 and found true the allegations that he served a prior prison term and suffered a prior strike conviction. However, the trial court also determined that Alamillo was not sane at the time of the commission of the offense and referred him to the Director of Mental Health for placement. In doing so, the court found that Alamillo’s maximum term of commitment4 was nine years, which it calculated by doubling the upper term of four years to account for the prior strike conviction (§ 667, subd. (e)(1)) and adding one year for the prior prison term (former § 667.5, subd. (b)). Taking into account Alamillo’s presentence and pre-commitment custody credits, his