P. v. Castro CA6

Filed 6/27/13 P. v. Castro CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038558 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS120892A)

v.

FRANCISCO CRUZ CASTRO,

Defendant and Appellant.

Defendant Francisco Cruz Castro appeals after pleading no contest to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He was placed on probation with imposition of sentence suspended. On appeal, defendant contends the trial court erred by denying his motion to reduce his felony conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b) (hereafter section 17(b)) and by imposing gang-related conditions of probation. He also contends trial counsel was ineffective for failing to seek a ruling on the section 17(b) motion. For the reasons stated below, we will reverse the judgment and remand for a ruling on defendant’s section 17(b) motion.

BACKGROUND During a traffic stop on May 13, 2012, defendant was found to have been driving without a license. He had a “meth pipe” in his pocket. A bottle containing five bindles of methamphetamine was found in the center console of the vehicle. Defendant claimed the methamphetamine did not belong to him, speculating that “his cousin must have left it.” Defendant later told the probation officer that he believed the methamphetamine was thrown inside the car after “someone” broke one of the car’s windows. The District Attorney filed a complaint charging defendant with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)). After a preliminary hearing, the complaint was deemed the information. On June 7, 2012, the prosecution moved to add a fourth count, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant then pleaded no contest to that count, and the trial court dismissed the other three counts. On the waiver of rights form, the parties and trial court indicated that the agreement was for the following sentence: “felony probation top, possible 17(b) at sentencing.” At the change-of-plea hearing on June 7, 2012, trial counsel referred to prior plea discussions, noting “that the Court stated the Court would entertain a 17 (b) motion at the time of sentencing.” The trial court responded, “You are right.” The prosecutor stated, “That was the agreement that it would be a plea to an 11377 top as a felony.” The probation report did not specifically address the section 17(b) issue. It noted, “The conditional plea indicates the defendant is to receive a grant of Felony Probation Top.” It recommended defendant “be placed on Formal Probation” under a number of conditions, including conditions barring him from associating with gang members. A sentencing hearing was held on July 10, 2012 in front of the same judge who had presided at the change-of-plea hearing. However, defendant was represented by a