People v. Soto CA4/1

Filed 11/17/20 P. v. Soto CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D076509

Plaintiff and Respondent,

v. (Super. Ct. No. SCS307529)

ESTEBAN MAGANA SOTO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed in part, reversed in part with directions.

Justin Behravesh, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

I INTRODUCTION A jury convicted Esteban Magana Soto of one count of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a); count 1), but acquitted him of one count of receiving a stolen vehicle (Pen. Code, § 496d; count 2). The court suspended imposition of a sentence for three years and placed Soto on formal probation, including 61 days in county jail to which the court applied credits for 31 actual days served plus 30 days for conduct. Soto contends the trial court abused its discretion by allowing a California Highway Patrol investigator to testify about his observations of a pattern of young people who are recruited to drive stolen vehicles across the border in Mexico and his opinion that Soto’s conduct fit this pattern. Soto contends this testimony had no relevance regarding the issue of whether Soto knew the car was stolen and amounted to improper expert testimony about Soto’s guilt. The People contend that any error in admitting the investigator’s testimony on these issues was harmless. Assuming without deciding there was error, we agree any such error was harmless. In supplemental briefs submitted at our request, the parties agreed that recently enacted Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2), which amends Penal Code section 1203.1 to limit the probation term for felony offenses to two years, subject to certain exceptions not applicable here, will apply to this case because it will not be final before the amendment becomes effective on January 1, 2021. However, at oral argument, the People suggested they may take a different view of whether the amendment should apply retroactively under In re Estrada (1965) 63 Cal.2d 740, 748, depending on whether probation is considered a form of punishment. We deny the 2