Error and/or relief
The trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.
First Holding:
Assault by means likely to produce great bodily injury is not a serious or violent felony.
Authority:
People v. Leng (1999) 71 Cal.App.4th 1, 9 [A violation of former section 245(a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant personally inflicted great bodily injury on any person, other than an accomplice, or personally used a firearm or a dangerous or deadly weapon]
Second Holding:
When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense.
Authority:
People v. Johnson (2015) 61 Cal.4th 674
People v. Lynn (2015) 242 Cal.App.4th 594
Third Holding:
Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing.
Authority:
People v. Buycks (2018) 5 Cal.5th 857, 893