Opinion
A158976
02-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ARTURO ESTRADA OCHOA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-190770-8) MEMORANDUM OPINION
We resolve the appeal by memorandum opinion pursuant to California Standards of Judicial Administration, standard 8.1 (1), (2). --------
Arturo Ochoa appeals from a judgment following his convictions for multiple offenses he committed while driving under the influence of alcohol (DUI). Ochoa contends, and the People agree, that this court must strike a one-year sentence enhancement imposed under Penal Code section 667.5, subdivision (b) (section 667.5(b)). We strike the enhancement and remand this case for resentencing.
BACKGROUND
In 2019, Ochoa was charged with committing four offenses during a 2017 automobile accident: Count 1 - DUI within 10 years of three prior DUI offenses (Veh. Code, §§ 23152, subd. (a) & 23550); Count 2 - driving with a blood alcohol level over 0.08 percent within 10 years of three prior DUI offenses (Veh. Code, §§ 23152, subd. (b) & 23550); Count 3 - driving when driving privileges were suspended or revoked for a prior DUI (Veh. Code, § 14601.2, subd (a)); Count 4 - driving a vehicle without an ignition interlock device when driving privilege was restricted (Veh. Code, § 23247, subd. (e)). In connection with counts one and two, the People also alleged that Ochoa served a prior prison term for violating Penal Code section 243, subdivision (d), which constituted a felony conviction within the meaning section 667.5(b).
A jury trial was held in August 2019. On the first day of trial, Ochoa pled no contest to counts 3 and 4 and waived sentencing until completion of trial on the remaining counts. On the fourth day of trial, the jury returned verdicts finding Ochoa guilty of DUI as charged in count one and driving with a blood alcohol content of .08 percent as charged in count two. That same day, a court trial was completed and the court found that the three DUI priors alleged in counts one and two were true. The court also found true the special allegation that Ochoa had served a prior prison term for a felony conviction within the meaning of section 667.5(b).
The sentencing hearing was held on October 4, 2019. The court imposed a two-year midterm for the DUI; a two-year midterm for driving with a blood alcohol content of .08 percent, which was stayed pursuant to Penal Code section 654; a consecutive six-month term for driving on a suspended license; and a consecutive six-month term for driving a vehicle without an interlock device. The court also imposed a consecutive one-year term under section 667.5(b) for the prison prior. Ochoa was ordered to serve the first three years of his sentence in county jail, with the fourth year suspended and deemed a period of mandatory supervision.
DISCUSSION
The consecutive one-year term that was imposed for Ochoa's prison prior must be stricken because of an amendment to section 667.5(b) that went into effect on January 1, 2020. (People v. Cruz (2020) 46 Cal.App.5th 715, 738-739.) Under the amended statute, "a one-year prison prior enhancement only applies if the defendant's prior prison term was served for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (Cruz, at pp. 738-739.) This amendment is ameliorative and applies retroactively to judgments that were not yet final when the amendment went into effect. (Id. at p. 739.) As Ochoa's prison prior was not for a sexually violent offense, and this judgment is not yet final, the one-year enhancement imposed under section 667.5(b) must be stricken. (Cruz, at pp. 738-739; People v. Keene (2019) 43 Cal.App.5th 861, 865; People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; People v. Lopez (2019) 42 Cal.App.5th 337, 341.)
Because Ochoa did not receive a maximum sentence at the original sentencing hearing, the proper remedy is a "remand for a full resentencing . . . so the trial court can exercise its sentencing discretion in light of changed circumstances." (People v. Navarro (2007) 40 Cal.4th 668, 681; see also People v. Buycks (2018) 5 Cal.5th 857, 893-896.)
DISPOSTION
The judgment is modified to strike the one-year prison prior enhancement and the matter is remanded to the trial court with directions to resentence Ochoa if the court wishes to exercise its sentencing discretion in light of the reduced sentence. The court is to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
TUCHER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.