People v. Orozco CA1/1

Filed 3/26/15 P. v. Orozco CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A140569, A140714

v. (Sonoma County JOSE ANGEL OROZCO, Super. Ct. Nos. SCR-603260, SCR- 632425, SCR-633535) Defendant and Appellant.

Jose Angel Orozco was charged with 10 counts and pleaded no contest to three of them. Count X, one of the counts to which Orozco pleaded no contest, was for a violation of Penal Code1 section 666.5, subdivision (a). Orozco argues the sentence imposed for count X must be reversed because section 666.5 describes a sentencing scheme, not an offense, and because he did not admit to a prior felony conviction, a necessary element for the imposition of a sentence under section 666.5, subdivision (a). We find the arguments unavailing and affirm. I. BACKGROUND Between February and May 2013, various people in and around Sonoma County reported incidents of stolen property, including stolen automobiles, electrical wire, power tools, trailers, and jewelry. Orozco had been seen at the locations from which the property was taken, and some of the stolen property was found in storage units rented by Orozco. Orozco was charged with 10 counts, and pled no contest to counts II, VII,

1 All statutory references are to the Penal Code unless otherwise indicated.

and X. Count X is at issue here. In the operative charging complaint, count X states Orozco violated section 666.5 in that “he did unlawfully buy and receive FLAT BED TRAILER . . . ; 1987 PICKUP TRUCK . . . ; 1995 BRACO CARGO TRAILER . . . and [sic] had been obtained in a manner constituting theft and extortion, knowing the property to be stolen and obtained, and did conceal, sell, withhold, and aid in concealing, selling and withholding said property.” The complaint also alleged Orozco was previously convicted for a violation of Vehicle Code section 10851, subdivision (a), and he served a prison term as described in Penal Code section 667.5, subdivision (b) for that offense. The court imposed a six-year term on count X, which the court described as “the middle term doubled because of the strike.” II. DISCUSSION Count X alleges Orozco violated section 666.5, which provides: “Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, . . . or a felony violation of Section 496d . . . , is subsequently convicted of any of these offenses shall be punished by imprisonment . . . for two, three, or four years.” (Id., subd. (a).) Orozco contends his plea of no contest to count X does not constitute a conviction for an offense since section 666.5 merely sets forth a sentencing scheme. We agree the charging complaint identifies the wrong statute, but that defect does not warrant reversal. As Orozco concedes, an accusatory pleading need not specify the code section under which a defendant is charged, and even a reference to the wrong code section may be viewed as immaterial. (People v. Gerber (2011) 196 Cal.App.4th 368, 388.) Under section 952, “In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified.” Further, section 960 provides: “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” “[R]easonable doubts in determining the identity