People v. Mialkousky CA4/2

BACKGROUND

In October 2009, a jury convicted defendant of assault with a deadly weapon other

than a firearm (§ 245, subd. (a)(1)), finding also that in using a sharp instrument (§§ 667,

1192.7, subd. (c)(31)), defendant inflicted great bodily injury on the victim (§§ 1192.7,

subd. (c)(8), 12022.7, subd. (a)). In bifurcated proceedings, the trial court found multiple

prior conviction enhancements to be true, including three serious felony convictions (§

667, subd. (a)) and four prior prison commitments (§ 667.5, subd. (b)). The trial court

sentenced defendant to an aggregate state prison term of 43 years to life. As relevant

here, the court imposed the statutory one-year enhancement terms for each of defendant’s

four prison priors (§ 667.5, subd. (b)), but stayed their execution. A subsequent abstract

of judgment, issued in November 2011, lists only three prison prior enhancement terms,

each still stayed, but the absence of the fourth suggests it was stricken.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 In December 2023 the trial court considered defendant’s eligibility for recall of his

sentence and resentencing under…