People v. Funez CA4/1

Filed 1/19/23 P. v. Funez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D079844

Plaintiff and Respondent,

v. (Super. Ct. No. JCF005084)

THOMAS OJEDA FUNEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Judgment vacated, remanded with directions.

Matthew A. Lopas, under appointment by 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, Collette C. Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent. Thomas Ojeda Funez appeals a judgment entered after he pleaded no contest in 2021 to a felony offense of discharging a firearm with gross

negligence (Pen. Code, § 246.3, subd. (a)1). He contends the trial court erred in finding that an alleged prior felony conviction in 1992 for vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) constituted a strike when the record of conviction did not establish he “personally inflicted” great bodily injury. The People concede, and we agree, that the record of conviction did not support such a finding. We, therefore, vacate the judgment and remand the matter with directions for the trial court to reverse the prior strike finding and conduct further sentencing proceedings. BACKGROUND Funez pleaded no contest to one count of discharging a firearm in a grossly negligent manner on September 11, 2021 (§ 246.3, subd. (a); count