People v. Phillips CA5

INTRODUCTION

In 2023, appellant’s 1998 sentence was recalled pursuant to Senate Bill No. 483 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) because the sentence included a now invalid prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).1 During the resentencing hearing, the trial court stated it had “not received any information that would warrant imposing the upper term.” However, on each of appellant’s domestic violence great bodily injury enhancements (§ 12022.7, former subd. (d)), the court imposed an additional term of five years, which is the upper term for that enhancement. On appeal from resentencing, the parties agree, as do we, that the record indicates the trial court was unaware that it was imposing the upper term, and therefore was unable to exercise “ ‘informed discretion’ ” at sentencing. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) We vacate appellant’s sentence and remand the matter for resentencing.

BACKGROUND

I. Initial Conviction and Sentence.

In 1998, a jury convicted appellant of willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a); count 1), aggravated mayhem (§ 205; count 2), and assault with…