People v. Calvo CA2/8

Filed 6/13/24 P. v. Calvo CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B329924

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA150300) v.

ROLANDO CALVO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Joseph R. Porras, Judge. Reversed and remanded with directions. Wayne C. Tobin, 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, Assistant Attorney General, Steven D. Matthews and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent. **********

Defendant and appellant Rolando Calvo appeals from the order denying his request for a resentencing hearing pursuant to Penal Code section 1172.75 (former § 1171.1). The People concede remand for resentencing is warranted. We reverse and remand with directions to the superior court to conduct a full resentencing hearing pursuant to section 1172.75. BACKGROUND In 2019, defendant pled no contest to one count of attempted first degree robbery at an automated teller machine (Pen. Code, §§ 211, 664), and he admitted a prior strike conviction and three 1-year prison priors (§ 667.5, subd. (b)). In accordance with the terms of the plea agreement, the court sentenced defendant to a state prison term of 14 years, calculated as follows: a three-year upper term, doubled due to the prior strike, plus a consecutive five years for the prior felony enhancement and three consecutive one-year terms for each of the section 667.5, subdivision (b) prison priors. Defendant was awarded 240 days of presentence custody credits. Following the enactment of Penal Code section 1172.75 in 2021 (Stats. 2021, ch. 728, § 3), the Department of Corrections and Rehabilitation referred defendant’s case to the superior court for recall and resentencing. On April 14, 2023, the trial court held a hearing at which defendant was not present but was represented by counsel. The court struck all three prison priors from defendant’s sentence and ordered the preparation of a new abstract of judgment reflecting an 11-year prison sentence. The court denied defense counsel’s request for a full resentencing, finding that it lacked jurisdiction to conduct a full resentencing because defendant’s conviction was the result of a plea agreement.