People v. Sotelo CA1/1

Filed 2/25/16 P. v. Sotelo CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A144405 v. MANUEL VINCENT SOTELO, (Lake County Super. Ct. No. CR934027-A ) Defendant and Appellant.

Defendant Manuel Vincent Sotelo contends the trial court erred by failing to invalidate sentencing enhancements imposed for prior prison felonies under Penal Code, section 667.5, subdivision (b),1 after it designated the prior felonies as misdemeanors under Proposition 47. Finding no error, we shall affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On April 11, 2014, the Lake County District Attorney filed an information charging Sotelo in count I with felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) and in count II with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In regard to Counts I and II, the information alleged five prior prison felonies under section 667.5, subdivision (b). The information further alleged Sotelo had suffered 13 prior felony convictions within the meaning of section

1 Further undesignated statutory references are to the Penal Code. Section 667.5, subdivision (b) mandates in pertinent part that sentencing courts must, “in addition and consecutive to” the sentence imposed for a nonviolent felony, impose a consecutive one- year term for “each prior separate prison term or county jail term” served for any prior felony conviction carrying a sentencing range of 16 months to three years.

1203, subdivision (e)(4), mostly for drug offenses. Additionally, the information charged Sotelo in Count III with misdemeanor driving without a license (Veh. Code, § 14601.1, subd. (a).) Sotelo appeared with counsel at a change of plea hearing held on April 15, 2014. At the hearing, the district attorney informed the court the parties had entered a plea agreement whereby Sotelo would plead guilty to count I of the information—possession of methamphetamine for sale—and admit to three of the prior prison terms with conviction dates of 1996, 1998 and 2003. The agreed sentence was six years, comprised of the upper term of three years on count I plus consecutive one-year terms for each of the three prior prison term convictions. Thereafter, Sotelo pleaded no contest on count I and admitted he suffered a prior prison term conviction in 1996 for grand theft (§ 487, subd. (a)); a second prior prison term conviction in 1998 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and, a third prior prison term conviction in 2003 for petty theft with a prior (§ 666). The court found Sotelo knowingly and intelligently waived his constitutional rights, that his plea was made freely and voluntarily, and accepted defendant’s no contest plea. The district attorney then moved to dismiss all remaining counts and allegations, which the court granted and then set the matter for sentencing. In May 2014, the court sentenced Sotelo to an aggregate term of six years as agreed under the plea agreement. Subsequently, on January 26, 2015, Sotelo filed a petition for resentencing pursuant to section 1170.18, asking the court to designate his prior prison felonies as misdemeanors and reduce his sentence by eliminating the section 667.5 enhancements imposed on account of the prison priors.2 At a hearing on the petition held on January 30, 2015, the trial court designated several of Solano’s multiple prior felonies as misdemeanors, including two of the three prior prison felonies used to enhance his