People v. Valladares CA4/1

Filed 10/27/20 P. v. Valladares CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075834

Plaintiff and Respondent,

v. (Super. Ct. No. SCD279856)

NOE COLIMA VALLADARES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Amalia Meza, Judge. Affirmed in part; reversed in part, with instructions.

Mazur & Mazur and Janice R. Mazur for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorney Generals, for Plaintiff and Respondent. A jury in March 2019 found defendant Noe Colima Valladares guilty of unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a); count 1), and

receiving a stolen vehicle (Pen. Code,1 § 496d; count 2). The jury also found true with respect to both counts that the value of the vehicle exceeded $950. Defendant subsequently admitted having a prison prior for vandalism over $400 (§§ 594, subd. (a)(b)(1) & 667.5, subd. (b)). In May 2019, the court sentenced defendant to the midterm of two years for count 1, plus one year for the prison prior. The punishment for count 2 was stayed (§ 654, subd. (a)). On January 27, 2020, defendant filed his opening brief in this court. In that brief, defendant contended his conviction on count 2 should be reduced to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act, because the evidence was insufficient to show the value of the vehicle exceeded $950. He further contended that he is entitled to relief under newly amended section 667.5 because his prison prior was not for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). The People in their April 1, 2020 respondent’s brief conceded that newly amended section 667.5 retroactively applies to defendant because his case was not yet final when this legislation became effective on January 1, 2020; that his prison prior should be struck because it was not for a sexually violent offense; and that the cause should be remanded for resentencing. The People, however, noted that subsequent to defendant’s opening brief, our high court on March 26, 2020, issued its decision in People v. Orozco (2020) 9 Cal.5th 111 (Orozco). In that case, our high court ruled Proposition 47 did not apply to an offense under section 496d, which criminalizes receipt