People v. Ortiz CA2/6

Filed 10/1/20 P. v. Ortiz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B303350 (Super. Ct. No. 2019024365) Plaintiff and Respondent, (Ventura County)

v.

JORGE ORTIZ,

Defendant and Appellant.

Jorge Ortiz appeals a judgment claiming his sentence is unauthorized. Pursuant to a negotiated plea agreement, Ortiz pled guilty to possession for sale of a controlled substance (Health & Saf. Code,§ 11378 (count 1), possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)) (count 2), and resisting a peace officer (§ 148, subd. (a)(1)) (count 6). He admitted he had a prior strike conviction and had served a prior prison term. (§ 667.5, subd. (b).) The court sentenced him to an aggregate prison term

All statutory references are to the Penal Code unless 1

otherwise stated.

1

of five years, which included a one-year term for the prior prison term enhancement. (§ 667.5, subd. (b).) We conclude, among other things, that 1) Senate Bill No. 136 requires that Ortiz’s prior prison term enhancement be stricken; 2) the trial court on remand must strike that enhancement, but lacks authority to increase Ortiz’s sentence; and 3) the abstract of judgment does not correctly reflect Ortiz’s sentence on count 2. We otherwise affirm. FACTS Suffice it to say, police stopped a vehicle in which Ortiz was a passenger. Ortiz fled on foot and tossed a firearm over a fence. He was ultimately apprehended. He possessed, among other things, $1,773 in cash, individually packaged bindles of methamphetamine, a scale, multiple plastic bags, six cell phones, and “revolver speed loaders” containing .38 caliber ammunition. Ortiz was charged with possession for sale of a controlled substance (Heath & Saf. Code, § 11378) (count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 2); carrying a loaded firearm (§ 25850, subd. (c)(6)) (count 3); carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)) (count 4); possession of ammunition (§ 30305, subd. (a)(1)) (count 5); and resisting an officer, a misdemeanor (§ 148, subd. (a)(1)) (count 6). Ortiz faced the prospect of receiving a sentence that could exceed 13 years. He entered into a negotiated plea agreement for a five-year term. The trial court approved the sentence contained in the plea agreement, which specified an aggregate “commitment of five years in the Department of Corrections.” Ortiz fell within the purview of the three strikes law. The trial court sentenced Ortiz to the agreed aggregate five-year prison term. Pursuant to the plea agreement, the sentence