People v. Ochoa CA1/3

Filed 2/23/21 P. v. Ochoa CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A159789 v. MANUEL MATIAS OCHOA, (Napa County Super. Ct. No. CR182855) Defendant and Appellant.

Defendant Manuel Matias Ochoa pled no contest to a felony and admitted a one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b).1) The trial court sentenced him to a three-year split-sentence pursuant to section 1170, subdivision (h)(5)(B), suspending execution of part of his sentence for a period of mandatory supervision. Months later, Senate Bill No. 136 went into effect, restricting prior prison term enhancements under section 667.5, subdivision (b), to sexually violent prior offenses. (Stats. 2019, ch. 590, § 1.) After that change in the law, defendant admitted violating the terms of his mandatory supervision, and the court terminated his mandatory supervision and ordered execution of the suspended portion of his sentence. At the sentencing hearing, the court denied defendant’s motion

1 All further statutory references are to the Penal Code.

1

to strike the prior prison term enhancement, believing he was ineligible for relief under Senate Bill No. 136. Defendant presently claims the court erred in denying his motion to strike because his sentence was not yet final when Senate Bill No. 136 went into effect. We agree with defendant and remand the matter to the trial court with directions to grant the motion to strike the enhancement. FACTUAL AND PROCEDURAL BACKGROUND In April 2017, the People charged defendant with a felony count for carrying a dirk or dagger (§ 21310), and misdemeanor counts for receiving stolen property (§ 496, subd. (a)) and attempted petty theft (§§ 664/484 subd. (a)). As to the felony count, the People further alleged a prior prison term enhancement (§ 667.5, subd. (b) (“667.5(b)”) based on a prior conviction under section 496, subdivision (a). Defendant pled no contest to the section 21310 count and admitted the enhancement allegation. In May 2017, the trial court suspended imposition of a sentence and placed defendant on probation for three years. In May 2019, the trial court revoked probation and imposed a three- year split sentence pursuant to section 1170, subdivision (h)(5)(B), suspending execution of a portion of the sentence for a period of mandatory supervision. In December 2019, the probation officer filed a petition to revoke mandatory supervision, and the court summarily revoked it and issued a bench warrant. Meanwhile, effective January 1, 2020, Senate Bill No. 136 (SB 136) amended section 667.5(b) to provide that prior prison term enhancements were no longer authorized unless the prior was for a sexually violent offense. (Stats. 2019, ch. 590, § 1.)