People v. Xiong CA3

BACKGROUND

In 2016, the trial court sentenced defendant to a term of 36 years four months; the sentence included doubling the five-year upper term for robbery due to a prior strike, one- third the midterm doubled due to restricted firearm possession, a 20-year firearm enhancement, and a five-year prior conviction enhancement. This court affirmed the conviction following Wende review and the judgment became final in 2017. (People v. Xiong (Feb. 24, 2017, C081131) [nonpub. opn.].) In 2019, the Department recommended the trial court recall and resentence defendant pursuant to amendments to section 667, subdivision (a), effective January 2019, which permitted the trial court to strike the enhancement. By written order, the trial court summarily denied the Department’s request, concluding that the “sentence imposed reflects the proper measure of justice.” Defendant appealed and we reversed to give the trial court an opportunity to reconsider the Department’s recommendation. (People v. Xiong (June 17, 2021, C089915) [nonpub. opn.].)

Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.03 was renumbered as section 1172.1 with no…