People v. Soria-Gonzalez CA3

Filed 10/7/22 P. v. Soria -Gonzalez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C095896
Plaintiff and Respondent, (Super. Ct. No. CRF20182737)
v.
LUIS ALEJANDRO SORIA-GONZALEZ,
Defendant and Appellant.
After defendant Luis Alejandro Soria-Gonzalez pled no contest to three felonies,
including dissuading a witness, the trial court placed him on probation. Three years later,
the trial court terminated probation and sentenced defendant to state prison, including a
principal term of 16 months and -- ostensibly in light of Penal Code1 section 1170.15 -- the
full middle term for the dissuasion offense. On appeal, defendant contends the trial court
erred by imposing the full middle term for the dissuasion offense, rather than one-third the
middle term. The People agree, as do we. Accordingly, we will remand the matter for
resentencing.
1 Further undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In November 2018, and pursuant to a negotiated disposition, defendant pled no
contest to three of nine offenses alleged in an information: resisting an executive officer
by force, taking a vehicle with intent to deprive the owner of it, and dissuading a witness.
The victim in the dissuading count (§ 136.1) was neither the officer whom defendant
resisted, the owner of the vehicle that defendant took, nor a witness to either offense. In
January 2019, the trial court suspended the imposition of the sentence and placed
defendant on probation.
In March 2022, after several revocations and reinstatements of probation, the trial
court terminated probation and sentenced defendant to 16 months on the resisting an
officer count (designating this as the principal term); a consecutive term of eight months
on the taking of a vehicle count (one-third the middle term), and a consecutive term of two
years on the dissuading a witness count (the full middle term).
The imposition of a full middle term for the dissuading a witness count was
consistent with the probation officer’s recommendation that section 1170.15 contemplated
such a result. Defense counsel argued the trial court had “wiggle room” in applying the
statute.
Defendant timely appealed.
DISCUSSION
Section 1170.15 provides, in relevant part: “[I]f a person is convicted of a felony,
and of an additional felony that is a violation of Section 136.1 [dissuading a witness] or
137 and that was committed against the victim of, or a witness or potential witness with
respect to, or a person who was about to give material information pertaining to, the first
felony . . . the subordinate term for each consecutive offense that is a felony described in
this section shall consist of the full middle term of imprisonment for the felony for which a
consecutive term of imprisonment is imposed.” (Italics added.)
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Typically, a trial court must impose one-third of the middle term for subordinate
terms. (§ 1170.1, subd. (a).) Section 1170.15 is an exception to that rule and allows the
trial court to sentence defendant to the full middle term for a subordinate count if the
prosecution proves: (1) defendant committed two or more felonies, (2) one of the felonies
is dissuading a victim or witness under sections 136.1 or 137, and (3) the person defendant
sought to dissuade was the victim of, or witness to, the first felony.
In People v. Evans (2001) 92 Cal.App.4th 664, we explained: “[F]or
section 1170.15 to apply, the dissuasion for which the defendant was convicted must relate
to another felony, of which the defendant was also convicted.” (Id. at p. 670.) Here,
because we agree with the parties that defendant’s dissuasion conviction does not relate to
either of the other two felonies of conviction, we must vacate the sentence for the
dissuading count.
We also agree with the parties the matter must be remanded for full resentencing.
(See People v. Buycks (2018) 5 Cal.5th 857, 893; People v. Evans, supra, 92 Cal.App.4th
at p. 670 [“ ‘The wiser course is to remand for resentencing rather than have us hazard a
guess in the first instance as to the likely sentence that would have been imposed had the
trial court been advised of our interpretation’ ”].)
DISPOSITION
The convictions are affirmed. The matter is remanded for resentencing. Following
resentencing, the trial court shall amend the abstract of judgment and forward a certified
copy to the Department of Corrections and Rehabilitation.
/s/
Robie, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Earl, J.
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