People v. Ginochio CA1/5

Filed 5/21/21 P. v. Ginochio CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
A158239
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. 5-171306-4)
GUIDO VELA GINOCHIO,
Defendant and Appellant.
Guido Vela Ginochio (appellant) appeals following his convictions for
attempted murder (Pen. Code, §§ 187, 664; count 1) and discharge of a
firearm with gross negligence (id., § 246.3; count 2). At the sentencing
hearing, the trial court sentenced appellant to the midterm of seven years on
count 1 (plus an additional term for an enhancement), and imposed a
concurrent eight-month term—one-third the midterm—on count 2.
Shortly thereafter, the court issued the following order sua sponte:
“Defendant was sentenced on August 2, 2019. On Count 2 the Court imposed
1/3 the midterm, concurrent to Count 1. The sentence of 1/3 the midterm
must be consecutive, therefore the Court is amending the sentence on Count
2. [¶] The Abstract of Judgment, filed in this matter on August 2, 2019, is
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hereby amended as follows: [¶] Count 2 – Midterm of 2 years, concurrent to
count 1 [¶] In all other respects, the aforesaid Abstract of Judgment remains
the same.”
In the sole issue raised on appellant’s appeal, he argues the court’s sua
sponte order impermissibly increased his sentence by changing the sentence
on count 2 from an eight-month concurrent term to an eight-month
consecutive term. In his reply brief, appellant properly concedes the court’s
order in fact changed the sentence on count 2 to a two-year concurrent term,
and therefore did not increase his aggregate sentence.
DISPOSITION
The judgment is affirmed.
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SIMONS, Acting P.J.
We concur.
BURNS, J.
RODRIGUEZ, J.*
(A158239)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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