People v. Prado CA2/6

Filed 1/20/21 P. v. Prado CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B301480 (Super. Ct. No. PA092370) Plaintiff and Respondent, (Los Angeles County)

v.

EMILIO PRADO,

Defendant and Appellant.

Emilio Prado appeals a judgment following his conviction for stalking (Pen.1 Code, § 646.9, subd. (b)) (count 1) and injuring a cohabitant/girlfriend (§ 273.5, subd. (a)) (counts 2 and 3). The jury also found true the allegation that Prado was previously convicted of violating Health and Safety Code section 11352, subdivision (a), a felony, in 2012; and “pursuant to . . . section 667.5,” subdivision (b) that he “did not remain free of prison or county jail custody for, a period of five years subsequent to the

All statutory references are to the Penal Code unless 1

stated otherwise.

conclusion of said term.” The trial court imposed an aggregate state prison sentence of seven years, which included a one-year consecutive sentencing enhancement under section 667.5, subdivision (b). We conclude the one-year consecutive sentencing enhancement under section 667.5, subdivision (b) must be stricken because of the passage of Senate Bill No. 136. We modify the judgment by striking the enhancement and order the trial court to prepare an amended abstract of judgment and send a certified copy of it to the appropriate authorities. The judgment, as modified, is affirmed. FACTS Y.A. was Prado’s former girlfriend. She had been dating him for three years. In one incident she and Prado were in a car. She told him that she did not want to be with him because he was intoxicated. Prado bashed her head onto the gearshift of a car. She testified she could not end her relationship with him because he threatened her and he “wouldn’t let [her] leave him.” He said he would kill her “if he saw [her] with somebody else.” In another incident Y.A. refused to let Prado see her daughter. Prado struck her on her face and body and kicked her. She suffered injuries to her eyes, forehead, and neck. Y.A. moved in with her aunt for a short period because she was “scared that [Prado] was going to come back and do it again.” When she came back to her home, she noticed “one of the doors was kicked into” and items from the house were missing. In November 2018, Y.A. obtained a restraining order against Prado. He was served with that order. Y.A. subsequently saw Prado “running out of [her] backyard.” In another incident she saw Prado again. She took out her phone to