Opinion
D076402
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. EDDY ARRIZON TAFOYA, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD280736) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed as modified. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
Because the facts are not at issue in this appeal, we offer only a brief recount of the events leading up to defendant's conviction.
On January 5, 2019, defendant Eddy Arrizon Tafoya and his girlfriend were in his car with their coworker Martha B. There was an argument. A surveillance camera showed defendant pulling Martha out of the car by her hair, as she also testified; pushing her to the ground; and repeatedly punching her "really, really hard" in the head. After defendant drove off "really fast," Martha texted defendant's girlfriend Siara in Spanish telling her, "Watch out," or words to that effect.
Martha denied her text message was a threat. However, shortly after she sent it and was attempting to call 911, defendant unexpectedly returned and, as further shown by surveillance video, again began punching and kicking Martha "[s]uper hard," including on the head, as she sat dazed on a bus-stop bench. Defendant also used his right hand to squeeze Martha's throat, making it difficult for her to breathe. Martha pleaded with him to stop, stating he was going to "kill" her.
After he left a second time, two good Samaritans helped Martha until her friend arrived, who ultimately transported Martha to the hospital emergency room, where she was treated for a two-centimeter laceration to her scalp; bruising; a sprain to her finger; and a concussion.
Defendant was arrested on February 26, 2019 as he was attempting to cross the border into Arizona.
By information, defendant was charged in count 1 with attempted murder of Martha in violation of Penal Code sections 187 subdivision (a) and 664; in counts 2 and 3 with assault by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(4); and in count 4 of attempting to dissuade a witness from reporting a crime, in violation of section 136.1, subdivision (b)(1).
All further statutory references are to the Penal Code unless otherwise specified. --------
As to count 1, it was further alleged that the offense was willful, deliberate, and premeditated within the meaning of section 189; and, as to counts 1 and 2, that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
A jury acquitted defendant of counts 1 and 4, but found him guilty of counts 2 and 3. A true finding was made on the great bodily injury allegation.
The trial court sentenced defendant to the upper term of four years on count 2, plus an additional three years for the personal infliction enhancement. A sentence of one year was imposed as to count 3. An additional year was also imposed for defendant's prior prison sentence under sections 667.5 and 668. The sentences were ordered to run consecutively for a total of nine years in prison. Defendant received credits of 169 actual days in custody plus 25 days credit. Restitution totaling $5,400 was imposed pursuant to section 1202.4, subdivision (b).
Defendant filed a timely notice of appeal.
ANALYSIS
On appeal, defendant raises two issues. He first questions whether, under newly enacted Senate Bill No. 136, which limited prison priors under section 667.5, subdivision (b) to incarceration for prior sexually violent offenses, applies retroactively to disallow the prior one-year enhancement in this case. Defendant argues the prior prison enhancement should be stricken because his previous conviction was not a sexually violent felony, as defined by Welfare and Institutions Code section 6600, subdivision (b).
We need not delve into the history of the change in the law because, citing People v. Jennings (2019) 42 Cal.App.5th 664, 682, the People agree with defendant. We agree as well. (See People v. Lopez (2019) 42 Cal.App.5th 337, 341 [noting under this amendment, a "one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense"].) Because defendant was sentenced to the maximum sentence available, we strike the one-year enhancement without the necessity of remanding for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893, 896, fn. 15 [noting that, when a court has imposed the maximum possible sentence, there is no reason to remand for resentencing]; People v. Winn (2020) 44 Cal.App.5th 859, 872-873 [same].)
Defendant also argues, pursuant to a mathematical formula offered in section 1202.4 subdivision (b)(2), that his restitution fine should be reduced to $4,800. He bases this on the observation that his prison term will be reduced by one year. However, as the People point out, the record is silent as to how the court calculated the restitution. Nor does the probation report, which recommended the $5,400 restitution fine, set forth the calculation urged by defendant. Although the formula advanced by defendant is available, it is not required. (§ 1202.4, subd. (b)(2); People v. Tillman (2000) 22 Cal.4th 300, 303.) We conclude the court properly exercised its discretion in setting the amount of restitution under section 1202.4. (See People v. Lewis (2009) 46 Cal.4th 1255.)
DISPOSITION
The prison prior enhancement imposed under section 667.5 is stricken. As modified, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy of such to the Department of Corrections and Rehabilitation.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.