People v. Gomez CA6

Filed 3/21/16 P. v. Gomez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042357 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS130021A & SS141092A) v.

MARTHA OCHOA GOMEZ,

Defendant and Appellant.

Defendant Martha Ochoa Gomez was convicted by plea of two counts of felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)) in separate cases. The court suspended imposition of sentence and placed her on formal felony probation in 1 each case. When Penal Code section 1170.18 was enacted by the voters as part of Proposition 47 in November 2014, defendant remained on probation. She filed petitions to recall her “sentence” in each case. The trial court denied her petitions on the ground that she was not “currently serving a sentence” despite the fact that she remained on felony probation in both cases. Defendant challenges this ruling on appeal, and the Attorney General concedes that the trial court erred. We agree and reverse the orders denying defendant’s petitions.

1 Subsequent statutory references are to the Penal Code unless otherwise specified.

I. Background In January 2013, defendant was charged by complaint with felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), and misdemeanor interference with a business by obstructing or intimidating customers (§ 602.1, subd. (a)). These offenses were alleged to have occurred in December 2012. Defendant pleaded guilty to the felony count, and the other counts were dismissed. In August 2013, the court suspended imposition of sentence and placed defendant on probation for the December 2012 possession offense. In May 2014, defendant was charged by complaint with a May 2014 felony possession of heroin. She pleaded no contest. In June 2014, the court suspended imposition of sentence for the May 2014 offense and placed defendant on probation. In October 2014, the court reinstated probation for both convictions. In March 2015, defendant filed petitions under section 1170.18 for recall of her sentences in both cases. She alleged in her petitions that she was “currently serving” sentences for these convictions. The prosecution responded that defendant was ineligible because she “has not been sentenced” and is “not serving a sentence.” Defendant argued that either she had been sentenced on her felony convictions or she was eligible to have them automatically reduced to misdemeanors under In re Estrada (1965) 63 Cal.2d 740. In May 2015, the court denied defendant’s petitions. It stated: “I do believe that the court feels a traditional definition of sentence is the one it will follow until told otherwise. So I’m going to either deny the petition, or if Ms. Gomez wishes to be sentenced, I’m happy to do that also.” Defendant chose not “to proceed to sentencing at this time.” Defendant timely filed notices of appeal from the court’s orders.