People v. Ortis CA2/3

Filed 4/4/24 P. v. Ortis CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B330200

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA385309) v.

JOHN ETHELDRED ORTIS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed. Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Nicholas J. Webster and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

In 2013, John Ortis pleaded nolo contendere to kidnapping (Pen. Code,1 § 207, subd. (a); counts 1 & 2), robbery (§ 211; count 8), and false imprisonment by violence (§ 236; count 9). Ortis admitted firearm enhancements under section 12022.53, subdivision (b), as to counts 1, 2, and 8, and under section 12022.5, subdivision (a), as to count 9. In 2014, the trial court sentenced Ortis on count 1 to eight years plus 10 years for the firearm enhancement; on count 2, to one year eight months plus 40 months for the firearm enhancement; on count 8, to one year; and on count 9, to eight months plus 16 months for the firearm enhancement. According to the minute order, all firearm enhancements were imposed “pursuant to section 12022.53(B).” The abstract of judgment similarly reflected that all firearm enhancements were imposed under section 12022.53, subdivision (b). The trial court also awarded Ortis 1,219 days of custody credits consisting of actual and conduct credits. In September 2017, the Department of Corrections and Rehabilitation informed the trial court that the abstract of judgment and minute order incorrectly reflected that the firearm enhancement attached to count 9 was imposed under section 12022.53, subdivision (b), when in fact it was imposed under section 12022.5, subdivision (a). Accordingly, on September 25, 2017, the trial court corrected the minute order nunc pro tunc to note that the firearm enhancement in count 9 was imposed under section 12022.5, subdivision (a). The trial court did not award Ortis additional days of custody credits. Then, in February 2023, Ortis petitioned to correct his sentencing credits. He argued that the 2017 correction constituted a resentencing or a modification to his sentence such