People v. Aldaco CA5

Filed 11/22/21 P. v. Aldaco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080735, F080737 Plaintiff and Respondent, (Super. Ct. Nos. BF175103B, v. BF167017B)

LIZETH YESENIA ALDACO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.

Defendant Lizeth Yesenia Aldaco was convicted of drug and firearm offenses in Kern County case No. BF167017B and assault by means of force likely to produce great bodily injury in Kern County case No. BF175103B. She was granted probation on both cases. The trial court later found defendant to have violated the terms of her probation and sentenced her to an aggregate term of nine years in prison. On appeal, defendant contends the trial court (1) did not understand that it had the discretion to reinstate defendant on probation, (2) erred in failing to order an updated probation officer’s report, and (3) improperly imposed a larger restitution fine in case No. BF167017 at sentencing for defendant’s violation of probation than was imposed at her original sentencing. The People agree that the trial court misunderstood its discretion to reinstate defendant on probation. However, the People contend that we need not resolve the second and third issues because the sentence must be vacated and the matter remanded for resentencing. We vacate defendant’s sentence and remand the matter for resentencing. In all other respects, we affirm. PROCEDURAL SUMMARY On June 16, 2017, the Kern County District Attorney filed an information in Kern County Superior Court case No. BF167017 charging defendant, along with two codefendants,1 with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), possession of a firearm by a prohibited person (Pen. Code, § 29820;2 count 2), carrying a loaded firearm on her person in public or in a vehicle (§ 25850, subd. (c); count 4), and possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 5). As to counts 1 and 5, the information alleged defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and while personally armed with a firearm (§ 12022, subd. (c)).