People v. Austin CA3

Opinion

Filed 9/2/26 P. v. Austin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

THE PEOPLE, C104003 Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE- v. 2013-0009308)

DENNIS EXZAVER AUSTIN, Defendant and Appellant.

Defendant Dennis Exzaver Austin appeals from a trial court resentencing order under Penal Code section 1172.75.1 Appointed counsel asked this court to review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and defendant filed a supplemental brief. Consistent with Delgadillo, we will limit our review to defendant’s supplemental contentions. Defendant challenges the validity of a prior strike conviction, and urges that the abstract of judgment should be corrected. We will affirm the judgment and direct the trial court to prepare a corrected abstract of judgment. BACKGROUND In February 2015, a jury found defendant guilty of first degree burglary (§ 459 -- counts 1 & 2), misdemeanor battery (§ 242 -- count 3), attempted destruction of evidence 1 Undesignated statutory references are to the Penal Code.

1 (§§ 664, 135 -- count 4), vandalism (§ 594, subd. (a) -- count 5), and attempted burglary (§§ 664, 459 -- count 6). The trial court found true allegations as to counts 1, 2 and 6 that defendant had two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)), and it sentenced defendant to an aggregate 75 years to life plus 10 years. This court reversed and remanded so the trial court could consider defendant’s sentence in light of Senate Bill No. 1393 (2017-2018 Reg. Sess.). (People v. Austin (Dec. 31, 2018, C084624) [nonpub. opn.].) The trial court declined to alter defendant’s sentence. In 2024, the trial court identified defendant as having a prior prison term enhancement subject to the resentencing provisions of section 1172.75 and it appointed counsel. However, it subsequently granted defendant’s motion to represent himself. At a hearing on May 19, 2025, and as relevant to the contentions on appeal, defendant asserted that his first degree burglary conviction in case No. SF11A2324A, now case No. CR-2009-7302 (the prior strike case) had been vacated. As a result, he argued there was no longer a valid prior strike conviction from that case that could be used in the current case. The People disagreed, explaining that although defendant had been resentenced in the prior strike case to four years in prison, the conviction remained, and it was still a valid prior strike for purposes of resentencing. On June 2, 2025, the trial court rejected defendant’s challenge to the prior strike conviction, concluding that the trial court had modified defendant’s sentence in the prior strike case but did not dismiss the prior strike conviction, and it was still a valid prior strike. However, the trial court struck the prior prison term enhancement and the two prior serious felony conviction enhancements, and it resentenced defendant to three 2 consecutive terms of 25 years to life on counts 1, 2, and 6, for an aggregate prison term of 75 years to life. The abstract of judgment filed on June 9, 2025, indicated that the hearing date was “05-01-17” rather than the June 2, 2025 date of the resentencing hearing. And in section 6.b, it referred to counts “1, 2, 3” rather than counts 1, 2 and 6. DISCUSSION Appointed counsel asked this court to review the record and determine whether there are any arguable issues on appeal. (Delgadillo, supra, 14 Cal.5th at p. 226.) Defendant was advised by counsel of his right to file a supplemental brief, and defendant filed a supplemental brief. We will consider the specific contentions asserted in the supplemental brief, but we have not independently reviewed the record. (Id. at pp. 228- 232.) I As he did in the trial court, defendant challenges the validity of the prior strike conviction in the prior strike case. But the trial court was correct in determining that defendant’s 2010 conviction for first degree burglary was not vacated. Rather, defendant was resentenced on that matter to a four-year prison term. Accordingly, the 2010 conviction remained on defendant’s record, and the trial court did not err in using that prior strike conviction in defendant’s June 2025 resentencing. II Defendant further contends the abstract of judgment must be corrected. We agree. The abstract of judgment must be changed to reflect that the hearing date was June 2, 2025, and in section 6.b., it must state counts 1, 2, and 6. DISPOSITION The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment identifying the hearing date as June 2, 2025, and in section 6.b., 3 referencing counts 1, 2, and 6. The trial court shall transmit a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/S/ MAURO, Acting P. J.

We concur:

/S/ KRAUSE, J.

/S/ BOULWARE EURIE, J.