People v. Esquivel CA4/1

Filed 12/30/24 P. v. Esquivel CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082555

Plaintiff and Respondent,

v. (Super. Ct. No. SCN059454)

LUIS ENRIQUE ESQUIVEL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Reversed in part and remanded with directions. Laura R. Vavakin, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1 In 1998, defendant Luis Enrique Esquivel was convicted on a host of criminal charges and sentenced to 34 years in state prison. Among the convictions was a misdemeanor for marijuana possession. (Health & Saf.

Code, § 11357, subd. (b).2) Twenty-five years later at Esquivel’s request, the trial court held a resentencing hearing as authorized by Penal Code section 1172.75 based on the fact that two one-year prison prior enhancements (Pen. Code, § 667.5, subd. (b)) incorporated in Esquivel’s sentence were no longer valid. The court conducted a full resentencing as required by the statute (id., § 1172.75, subd. (d)), struck the offending enhancements, and made other changes that reduced Esquivel’s sentence to 31 years, 8 months. Still included in that sentence was a 180-day concurrent term for possession of marijuana. Although not brought to the court’s attention at the time of resentencing, Esquivel now contends he is entitled to have his marijuana conviction stricken because possession of less than 28.5 grams is no longer illegal after the passage of Proposition 64 in 2016. He maintains his case must be remanded for another resentencing. The People dispute Esquivel’s assertion that we can strike his marijuana conviction on appeal, but they concede he is entitled to make that request of the trial court pursuant to section 11361.8. Because we agree with the People, we will reverse in part and remand with directions.