People v. Ginochio CA1/5

Filed 5/21/21 P. v. Ginochio CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, A158239 Plaintiff and Respondent, v. (Contra Costa County Super. Ct. No. 5-171306-4) GUIDO VELA GINOCHIO, Defendant and Appellant.

Guido Vela Ginochio (appellant) appeals following his convictions for attempted murder (Pen. Code, §§ 187, 664; count 1) and discharge of a firearm with gross negligence (id., § 246.3; count 2). At the sentencing hearing, the trial court sentenced appellant to the midterm of seven years on count 1 (plus an additional term for an enhancement), and imposed a concurrent eight-month term—one-third the midterm—on count 2. Shortly thereafter, the court issued the following order sua sponte: “Defendant was sentenced on August 2, 2019. On Count 2 the Court imposed 1/3 the midterm, concurrent to Count 1. The sentence of 1/3 the midterm must be consecutive, therefore the Court is amending the sentence on Count 2. [¶] The Abstract of Judgment, filed in this matter on August 2, 2019, is

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hereby amended as follows: [¶] Count 2 – Midterm of 2 years, concurrent to count 1 [¶] In all other respects, the aforesaid Abstract of Judgment remains the same.” In the sole issue raised on appellant’s appeal, he argues the court’s sua sponte order impermissibly increased his sentence by changing the sentence on count 2 from an eight-month concurrent term to an eight-month consecutive term. In his reply brief, appellant properly concedes the court’s order in fact changed the sentence on count 2 to a two-year concurrent term, and therefore did not increase his aggregate sentence. DISPOSITION The judgment is affirmed.

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SIMONS, Acting P.J.

We concur.