Filed 12/10/14 P. v. Weiser 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)


THE PEOPLE,                                                                                  C075281

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F00699)

         v.

LANCE J. WEISER,

                   Defendant and Appellant.




         A jury found defendant Lance J. Weiser guilty of inflicting injury on a cohabitant
(Pen. Code, § 273.5)1 and “simple assault” (§ 240).2 Defendant subsequently admitted
he was convicted of inflicting corporal injury on a cohabitant or spouse in January 1991.
Defendant also admitted serving a prior prison term for an elder abuse conviction in
2007.
         Prior to sentencing, the probation department (department) issued a report and
recommendation, wherein the department recommended defendant be committed to state



1   Undesignated statutory references are to the Penal Code.
2   The trial court later “dismissed” the conviction for assault.

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prison “for the midterm of four (4) years,” because defendant had a “273.5 [subdivision]
(e)(1) prior . . . .”3 Former section 273.5, subdivision (e)(1), now section 273.5,
subdivision (f)(1) provides that “[a]ny person convicted of violating this section for acts
occurring within seven years of a previous conviction under subdivision (a), or
subdivision (d) of Section 243, or . . . , shall be punished by imprisonment in a county jail
for not more than one year, or by imprisonment in the state prison for two, four, or five
years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000).”
(Italics added.)
       At sentencing, the trial court stated its intention to follow the department’s
recommendation: “it’s the Court’s intended sentence after considering those factors and
the general objectives in sentencing to follow the Probation Department’s
recommendation and sentence the defendant to the mid term on this offense which would
be a four years in the State Prison with an additional year for the prison prior . . . .” The
People agreed the midterm was the appropriate term.
       Following argument from defendant, the trial court ruled that “the
recommendation of Probation Department is the correct one given all of the facts relating
to it, so it’s the judgment and sentence of the Court that for the violation of Penal Code
Section 273.5 [subdivision] (a) together with the finding under Penal Code Section 273.5
[subdivision] (e)(1) that the defendant be committed to the State Prison for a term of four
years which represents the mid term as the principal term in this case . . . .” The court
added another year for defendant’s prior prison term, for an aggregate term of five years
in state prison.
       On appeal, defendant contends that because the trial court intended to sentence
him to the midterm, it was error to sentence him to four years pursuant to former



3 Section 273.5 was subsequently amended. The language previously found in
subsection (e)(1) is now found in subdivision (f)(1). (Stats. 2013, ch. 763, §1.)

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section 273.5, subdivision (e)(1). Defendant argues that his prior conviction for inflicting
corporal injury was in January 1991, nearly 22 years before his conviction here, far in
excess of the seven-year washout period contained in the statute. Accordingly, he
contends, the sentence imposed is unauthorized because it is not the statutory midterm.
The People concede the error.
       Having reviewed the record and the applicable law, we accept the People’s
concession. We shall remand the matter for resentencing.
                                        DISPOSITION
       The sentence imposed is hereby stricken. The matter is remanded and the trial
court is directed to resentence defendant according to the triad prescribed in
section 273.5, not the aggravated triad found in what is now section 273.5,
subdivision (f)(1). Following resentencing the trial court is directed to prepare an
amended abstract of judgment and forward a certified copy of the same to the Department
of Corrections and Rehabilitation.


                                             BLEASE                    , Acting P. J.


We concur:


         BUTZ                        , J.


         MAURO                       , J.




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