People v. Pinho CA1/3

Filed 8/25/20 P. v. Pinho CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A157247 v. KEVIN MICHAEL PINHO, (Del Norte County Super. Ct. No. CRF 19-9044) Defendant and Appellant.

Following a jury trial, Kevin Michael Pinho was convicted of driving or taking a vehicle without consent and sentenced to seven years in state prison. On appeal, he contends (1) a one-year sentence enhancement due to his service of a prior term in prison must be stricken due to a recent amendment to Penal Code1 section 667.5, subdivision (b); and (2) his trial counsel was ineffective for failing to object to the imposition of fines, fees, and assessments. We agree the prior prison term enhancement must be stricken and remand for resentencing. BACKGROUND In July 2018, California Highway Patrol (CHP) Officer Tyler Krueger and his partner were patrolling Highway 101, just south of the Oregon border. They pulled over a van going above the speed limit. The driver,

1 All undesignated statutory references are to the Penal Code.

identified as Pinho by Officer Krueger at trial, did not have a driver’s license, proof of insurance, or vehicle registration. He gave Officer Krueger a couple of different names and driver’s license numbers, none of which could be verified through CHP dispatch. Pinho said his aunt loaned him the van. When the officers were unable to confirm Pinho’s identity, they placed him under arrest and began an inventory search of the van. During the search, Pinho fled. Officer Krueger chased him on foot and detained him about a quarter of a mile from the traffic stop. CHP officers found paperwork in the van indicating it was registered to Robert H. in Eugene, Oregon. When he was contacted, Robert H. told officers that he was in the process of reporting the vehicle as stolen. At trial, Jennifer H., the van’s coowner, said she had parked the van in the driveway of her home in Port Orford, Oregon and left the keys in the cup holder. The next morning, the van was missing and she reported it stolen. She did not know Pinho and had not given anyone permission to drive the van. Pinho testified that around the time of his arrest, his mother called him in Port Orford and asked for help with his father, who was in the hospital in Eureka suffering from late-stage leukemia. An aunt told him he could borrow a vehicle that she had to drive to Eureka. She gave him keys to a van, which she said she borrowed from an acquaintance. Pinho testified that he did not steal the van and that his willingness to pull over showed that he did not know the van was stolen. He lied about his identity to Officer Krueger because he was on parole in Oregon, and if arrested, he would not have been able to see his father before he died. He fled after arrest because he was not in the “right state of mind” due to the stressful situation with his father.