People v. Robertson CA3

Filed 4/4/24 P. v. Robertson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C097567

Plaintiff and Respondent, (Super. Ct. No. CM021130)

v.

TEOTIS LAMARK ROBERTSON,

Defendant and Appellant.

Defendant Teotis Lamark Robertson appeals from his resentencing pursuant to Penal Code section 1172.75.1 Defendant argues the trial court erred in failing to grant him a full resentencing. He further contends the court erred in failing to award sufficient custody credits. We will modify the credits and otherwise affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In June 2007, defendant pleaded no contest to second degree robbery. (§ 211.) He also admitted a firearm enhancement (§ 12022.53, subd. (b)), a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior serious felony (§ 667, subd. (a)), and a prior prison term (former § 667.5, subd. (b)). He stipulated to the upper term on the robbery charge. Additional allegations were stricken. Later that month, the trial court sentenced defendant to state prison for an aggregate term of 28 years, including: 10 years for the robbery count (the upper term of five years doubled due to the strike); 10 years consecutive for the firearm enhancement; five years consecutive for the prior serious felony enhancement; two years consecutive for a 2005 conviction for sexual battery on a restrained person (§ 243, subd. (a)); and one year consecutive for a prior prison term enhancement (former § 667.5, subd. (b)) associated with the 2005 conviction. In subsequent proceedings, the court awarded 631 days of custody credit, consisting of 549 actual and 82 conduct days. This court affirmed the judgment on appeal. (People v. Robertson (May 23, 2008, C056802) [nonpub. opn.].) In August 2022, the trial court set a resentencing hearing pursuant to sections 1172.7 and 1172.75. Defendant filed a brief asking the court to dismiss the prior prison term enhancement because it was now invalid, pursuant to Senate Bill No. 483 (2021- 2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3.) Relying on section 1385, defendant further argued the court should dismiss the 10-year firearm enhancement and five-year prior serious felony enhancement. Defendant noted the application of the enhancements resulted in a sentence greater than 20 years, multiple enhancements were alleged, and the prior serious felony conviction was for a conviction that is over five years old. (§ 1385, subds. (c)(2)(C), (B), & (H).) Defendant further argued the court must consider “[defendant’s] record of post-conviction rehabilitation at CDCR, his age, and the time remaining on this sentence without the enhancements.”