People v. Alcantara CA4/1

Filed 11/24/20 P. v. Alcantara CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D077148

Plaintiff and Respondent,

v. (Super. Ct. No. SCN315462)

JORGE COLIN ALCANTARA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

This is an appeal from the trial court’s decision not to recall the

sentence under Penal Code1 section 1170, subdivision (d) for the purpose of striking a serious felony prior conviction (§ 667, subd. (a)(1)). In July 2013, Jorge Colin Alcantara pleaded guilty to attempted murder (§§ 187, subd. (a) & 664) as part of a plea agreement with a stipulated sentence. Alcantara admitted a serious felony prior conviction, a strike prior, and that he personally inflicted great bodily injury on the victim. The parties stipulated to an 18-year prison term, which was structured as the low term for attempted murder, doubled because of the prior strike for 10 years, plus five years for the serious felony prior, and three years for the great bodily injury enhancement. Alcantara did not appeal his sentence or seek a certificate of probable cause. Alcantara contends the trial court did not understand the scope of its discretion and the case should be remanded to permit the court to exercise informed discretion. The People’s response does not address Alcantara’s contention. Rather, it argues the conviction was final years before Senate Bill No. 1393 (2018- 2018 Reg. Sess.) was enacted, effective January 1, 2019. The argument continues that Senate Bill No. 1393 does not apply to Alcantara’s case because the judgment was final and that a recall of the sentence under section 1170, subdivision (d) does not reopen the judgment for purposes of retroactive changes in law. We will disagree with Alcantara’s claim the court was unaware of its discretion. The court understood its discretion and made a reasoned decision not to strike the prior conviction. We will decline to reach the People’s argument in this case. The issue raised is before the Supreme Court