Filed 4/26/18 P. v. Duncan CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS ARTHUR DUNCAN,

Defendant and Appellant.


G054629

(Super. Ct. No. 14NF5046)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Reversed and remanded.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

THE COURT:*
Though it could not reach a unanimous verdict on three other counts, a jury convicted defendant Nicholas Arthur Duncan of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). In a bifurcated proceeding, defendant admitted he had: two serious or violent prior felony convictions (§§ 667, subd. (d), 1170.12, subd. (b)); one prior serious felony (§ 667, subd. (a)(1)); and two prior felony convictions for which he had served a prison term of at least one year (§ 667.5, subd. (b)). The trial court sentenced defendant to 11 years in prison, comprised of: (1) the midterm of three years for the conviction (§ 245, subd. (a)(4)); (2) a doubling of the three-year term based on the prior strikes (§ 667, subd. (e)(1), (e)(2)(C)); and (3) a consecutive five-year term for the prior serious felony conviction (§ 667, subd. (a)(1)). The court struck the prison priors for purposes of sentencing only.
The Attorney General concedes sentencing error with regard to the consecutive five-year term for the prior serious felony conviction (§ 667, subd. (a)(1)). Section 667, subdivision (a)(1), “authorizes a five-year enhancement only when both the defendant’s prior crime and his current offense constitute ‘serious felonies’ . . . under section 667.” (People v. Equarte (1986) 42 Cal.3d 456, 460.) Defendant’s conviction for assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) is not, per se, a serious felony under section 1192.7, subdivision (c). (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) We agree with both parties that this enhancement must be stricken. We also agree with the Attorney General that the appropriate remedy is to remand for a new sentencing hearing to allow reconsideration of the overall sentence in light of this error (and not merely to strike the enhancement and modify the sentence here). (See People v. Hill (1986) 185 Cal.App.3d 831, 834.)
The contested portion of this appeal is whether the court erred by declining to exercise its discretion at the sentencing hearing to reduce defendant’s assault conviction to a misdemeanor. (See § 17, subd. (b); § 245, subd. (a)(4); People v. Tran (2015) 242 Cal.App.4th 877, 885.)
We review the court’s decision to treat defendant’s conviction as a felony for an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) The court denied defendant’s motion to treat his crime as a misdemeanor “based on the evidence [it] heard.” Defendant contends the court’s ruling on his request does not “reflect a thoughtful and conscientious assessment of all relevant factors . . . .” (Id. at p. 979.) Defendant does not argue that the court was obligated as a matter of law to reduce the assault conviction to a misdemeanor. Rather, defendant contends this court should remand the case to the trial court “for reconsideration of [defendant’s] motion.”
Given that we are remanding for a new sentencing hearing anyway because of the conceded enhancement issue, this contested issue is moot. Defendant is free to reargue his position that the reduction of his assault conviction to a misdemeanor is appropriate. The court’s sentencing discretion on remand is intact, although the new sentence cannot exceed the prior sentence of 11 years in prison. (See People v. Hanson (2000) 23 Cal.4th 355, 357.)

DISPOSITION

The judgment is reversed and the case is remanded for resentencing consistent with this opinion.