People v. Ceballos-Rodriguez CA1/2

Filed 6/20/23 P. v. Ceballos-Rodriguez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A164326 v. IXCOATL CEBALLOS– (Contra Costa County Super. RODRIGUEZ, Ct. No. 1-196539-1) Defendant and Appellant.

Effective January 1, 2022, the determinate sentencing law, Penal Code section 1170, was amended in several fundamental ways. As relevant here, the law now specifies that the lower term is the presumptive term if either certain types of trauma or the defendant’s youth was a contributing factor in the commission of the offense. (§ 1170, subd. (b)(6).) Defendant Ixcoatl Ceballos-Rodriguez was sentenced in December 2021, before the new law came into effect. His only contention on appeal is that he is entitled to resentencing under Penal Code section 1170 as amended, and his case should be remanded for that purpose. The Attorney General argues remand is not necessary in the circumstances of this case. We will remand for resentencing under the amended law.

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BACKGROUND A jury found defendant guilty of 10 offenses: one count of misdemeanor fleeing a pursuing peace officer’s motor vehicle (Veh. Code, § 2800.1, subd. (a)), four counts of driving a vehicle without consent (id., § 10851, subd. (a)), two counts of fleeing a pursuing peace officer’s vehicle while driving recklessly (id., § 2800.2), two counts of fleeing a peace officer’s vehicle while driving against traffic (id., § 2800.4), and one count of misdemeanor false imprisonment (Pen. Code,1 § 236). At the sentencing hearing on December 3, 2021, the court sentenced defendant to two years and eight months in state prison. The sentence was composed of a middle term of two years for one count of fleeing a peace officer’s vehicle while driving against traffic and a consecutive term of eight months (one-third the middle term) for one count of driving a vehicle without consent. Punishment for the remaining counts was either imposed to run concurrently or stayed under section 654. DISCUSSION A. Changes to Section 1170 At the time defendant was sentenced, section 1170 gave the trial court broad authority to select a principal term from the applicable statutory triad (lower, middle, or upper term) that “in the court’s discretion, best serve[d] the interests of justice.” (Former § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 15.) Effective January 1, 2022, however, section 1170, was amended to add subdivision (b)(6) (§ 1170(b)(6)).2 This subdivision provides in relevant part,