People v. Leewis CA4/1

Filed 6/18/24 P. v. Leewis CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082014

Plaintiff and Respondent,

v. (Super. Ct. No. SCE412068)

AARON LEEWIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Sherry M. Thompson-Taylor, Judge. Reversed in part, otherwise affirmed, and remanded for retrial and/or resentencing. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Brandon Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION Aaron Leewis appeals a judgment imposing a five-year sentence enhancement under Penal Code section 667, subdivision (a), for a prior out-of- state conviction. The People concede both that (1) Leewis’ prior Texas conviction for aggravated assault does not necessarily constitute a serious or violent felony under California law for the purposes of the enhancement statute, and (2) the Texas record of conviction relied on by the trial court provides insufficient evidence to support a finding that it does. Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we accept the People’s concession, without fully adopting their reasoning, reverse in part the judgment, otherwise affirm, and remand solely for a retrial of the prior serious felony allegation and resentencing. A jury found Leewis guilty of robbery and brandishing a weapon. The People had alleged Leewis suffered two prior serious felony convictions, warranting enhancements under section 667(a). Leewis admitted that one of his prior convictions qualified but disputed that his second conviction for aggravated assault from Texas did. After a bench trial, the court found the Texas record of conviction provided sufficient evidence that Leewis’ underlying conduct amounted to a serious felony of assault with a deadly weapon under section 245(a)(1). The trial court sentenced Leewis to 21 years, including two five-year enhancements. Section 667(a)(1) provides for a sentence enhancement for “any offense committed in another jurisdiction that includes all of the elements of any serious felony” under California law. A sentencing court can impose an enhancement if the elements of the out-of-state offense are the same or