People v. Lopez CA6

Filed 7/18/22 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047665 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1777932)

v.

HENRY CASTRO LOPEZ,

Defendant and Appellant.

A jury convicted defendant Henry Castro Lopez of attempted first-degree burglary. The trial court suspended execution of a six-year prison sentence, placed Lopez on probation for five years, imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)1 ) but waived other fines and fees, ordered Lopez to stay away from the attempted burglary victim and her home for a period of 10 years, and referred Lopez to mental health treatment court. The mental health treatment court subsequently modified the sentence nunc pro tunc. On appeal, Lopez raises three claims of error related to his sentencing. He contends the 10-year protective order is unauthorized and must be stricken, the five-year probationary term must be reduced to two years under section 1203.1, subdivision (a), as

1 Unspecified statutory references are to the Penal Code.

amended after his sentencing by Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950), and the $300 restitution fine must be stricken because the trial court recognized at sentencing that he did not have the ability to pay that fine. The Attorney General counters that we should remand the case to permit the trial court to address various uncertainties related to Lopez’s sentencing. For the reasons explained below, we reverse the probation order entirely and remand the matter for resentencing in a manner that renders Lopez’s probationary term consistent with current section 1203.1, subdivision (a). Given our reversal of the probation order, we do not decide Lopez’s remaining claims. Instead, we direct that the trial court may consider at resentencing the propriety of imposing a protective order or restitution fine. In all other respects, we affirm the judgment. I. FACTS AND PROCEDURAL BACKGROUND In June 2018, the Santa Clara County District Attorney filed an information charging Lopez with attempted first-degree burglary (§§ 460, subd. (a), 664; count 1) and misdemeanor buying or receiving stolen property (§ 496, subd. (a); count 2). The information further alleged that Lopez had suffered two prior strike convictions (strike priors) (§§ 667, subds. (b)–(i), 1170.12) and a prior serious felony conviction (serious felony prior) (§ 667, subd. (a)). A jury heard evidence on the charges. The prosecution’s evidence demonstrated that, on the morning of September 17, 2017, M.B. was at home with her brother when she heard a loud noise in the area of a door that led from the garage into her house.2 M.B. went to investigate and came upon Lopez holding a screen that had been removed from a window. While M.B. talked to Lopez about what he was doing, M.B.’s brother took a picture of Lopez. M.B. told Lopez that she was going to call the police. Lopez responded, “ ‘Yes, go ahead and call