People v. Smith CA2/3

BACKGROUND

Only facts regarding Smith’s sentence are relevant on appeal. In 2003, a jury found Smith guilty of attempted second degree robbery (§§ 664, 211; count 2), second degree robbery (§ 211; count 3), and of being a felon in possession of a weapon (former § 12021, subd. (a); count 4). As to the robbery counts, the jury found that Smith personally used a gun (§ 12022.53, subd. (b)). The court found that Smith had a prior strike conviction within the meaning of the Three Strikes law and one prior prison commitment under section 667.5, subdivision (b). That same year, the trial court sentenced Smith to 31 years in prison. As relevant here, the trial court imposed but stayed the sentence on the section 667.5, subdivision (b), prison prior.

1 All further undesignated statutory references are to the Penal Code.

2 After our Legislature passed Senate Bill No. 483, Smith petitioned for resentencing under that new law.2 On March 13, 2023, the trial court heard the petition but found that Smith was not serving a sentence that includes a section 667.5, subdivision (b), enhancement because the enhancement was stayed. The trial court therefore did not conduct a full resentencing…