People v. Duran CA4/1

Filed 4/19/22 P. v. Duran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079512

Plaintiff and Respondent,

v. (Super. Ct. No. JCF003929)

MICHELLE DIAZ DURAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, William Derek Quan, Judge. Reversed and remanded with directions. Jason L. Jones, by appointment of the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. After entering a no contest plea to felony assault with force likely to cause great bodily injury, Michelle Diaz Duran failed to comply with a term of her plea agreement that required her to appear at her sentencing hearing.

Although the parties agreed to a suspended sentence, because Duran failed to appear at the sentencing hearing, the court imposed the upper term of four years in state prison. On appeal, Duran contends the sentence must be vacated and the matter remanded for resentencing in light of Senate Bill No. 567 (Senate

Bill 567), which amended Penal Code1 section 1170, subdivision (b) to make the middle term the presumptive sentence absent certain circumstances. Duran further contends the minute order and abstract of judgment reflect a conviction for the wrong offense, and she requests the documents be corrected to reflect the conviction is for assault with force likely to cause great bodily injury. The Attorney General agrees with Duran on both contentions. We accept the concessions, and we will remand the matter for resentencing, with instructions to correct the abstract and minute order. BACKGROUND AND PROCEDURAL FACTS The State charged Duran with felony criminal threats (§ 422, subd. (a); count 1), misdemeanor battery (§ 242; count 2), misdemeanor violation of a criminal protective order (§ 166, subd. (a)(4); count 3), and felony assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). The charges stemmed from an incident at Duran’s mother’s home in January 2021, during a time period when Duran’s mother had an active court order prohibiting