People v. Ortiz CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD256078
- Trial judge
- Jay Bloom
- Outcome
- reversed in part — Affirmed in part, reversed in part, and remanded with directions.
- Area
- criminal
- Panel
- O'Rourke (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court sentenced the defendant to four years in prison for possession of cocaine base for sale, applying the pre-amendment statutory middle term. The Court of Appeal reversed the sentence and remanded for resentencing under the retroactively applied California Fair Sentencing Act, which reduced the middle term to three years.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sentence of four years in prison for Health and Safety Code section 11351.5 violation“Therefore, if the court intended to sentence Ortiz to the middle term, it erred by not correctly applying the modified statute's provision.” | de novo | error | agree with court The appellate court correctly identified that the California Fair Sentencing Act (Stats. 2014, ch. 749) retroactively reduced the middle term for Health and Safety Code section 11351.5 from four years to three years. Because the trial court imposed a four-year sentence, it failed to apply the amended statute, constituting legal error. The court properly remanded for resentencing to allow the trial court to exercise its discretion within the new statutory range. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the procedure for appointed appellate counsel to review the record for error when no reasonably arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying any arguable issues and requesting leave to withdraw if none exist.
- relied: People v. Keith (2015) 235 Cal.App.4th 983 — Holds that the California Fair Sentencing Act amendments to Health and Safety Code section 11351.5 apply retroactively to cases on direct appeal.
The appellate opinion: sound — The opinion is sound because it correctly applies the retroactivity holding from People v. Keith to the specific statutory amendment at issue. It accurately identifies the legal error in the trial court's sentencing calculation and provides the appropriate remedy of remand for resentencing.
How this analysis was made · dispute it
unusual dispositionAfter revoking probation, the trial court sentenced Ortiz to a purported four-year middle term for possession of cocaine base for sale under Health and Safety Code section 11351.5, and later denied reconsideration. On a Wende/Anders appeal, the Court of Appeal affirmed the conviction but reversed the sentence because the California Fair Sentencing Act, effective January 1, 2015, had reduced the triad to two, three, and four years, and remanded for resentencing under the amended statute.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of a four-year 'middle term' sentence for violation of Health and Safety Code section 11351.5 upon revocation of probation“Therefore, if the court intended to sentence Ortiz to the middle term, it erred by not correctly applying the modified statute's provision.” | de novo | error (law misapplied) | agree with court Sentencing occurred in April 2015, after the January 1, 2015 effective date of the amendment reducing the section 11351.5 triad to 2/3/4 years, and People v. Keith holds the reduction applies to non-final cases in any event. A four-year 'midterm' was therefore a misapplication of the governing statute, and because selecting the term is a discretionary act for the trial court, remand rather than modification was the proper remedy. |
Judgment of conviction (guilty plea to Health and Safety Code section 11351.5) and probation revocation, reviewed independently under Wende/Anders“We have reviewed the entire record consistent with the mandate of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have identified one issue for reversal on appeal.” | unclear | correct | agree with court Appointed counsel found no arguable issues, Ortiz filed no supplemental brief, and the court's independent review of the record identified only the sentencing error. Nothing in the opinion suggests any defect in the plea or the revocation, so affirmance of the conviction is supported. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and the court must conduct its own examination of the record.
- relied: People v. Keith (2015) 235 Cal.App.4th 983 — The California Fair Sentencing Act's reduction of the section 11351.5 sentencing triad applies retroactively to cases not yet final, and the proper remedy is remand for the trial court to exercise its discretion in resentencing.
The appellate opinion: sound — The court correctly identified that the trial court applied a superseded sentencing triad and relied on the directly applicable authority, People v. Keith, for both retroactivity and the remand remedy. It did not expressly note that the amended statute was already in force at the April 2015 sentencing or cite In re Estrada, but Keith adequately covers the point and the result is plainly right.
Opinion
Filed 3/2/16 P. v. Ortiz CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068252
Plaintiff and Respondent, v. (Super. Ct. No. SCD256078)
DARIAN MONIQUE ORTIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Jay Bloom, Judge. Affirmed in part, reversed in part, and remanded with directions.
Sarita Ordonez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, for Plaintiff and Respondent.
In September 2014, Darian Monique Ortiz pleaded guilty to possession or purchase of cocaine base for sale. (Health & Saf. Code, § 11351.5.) The court sentenced her concurrently in this case and People v. Ortiz (Super. Ct. S.D. County, 2014, No.
SCD255607) and placed her on three years formal probation on condition she spend 365 days in local custody. Ortiz violated the terms of her probation by not participating in a program at a transitional living center.
In February 2015, Ortiz was arrested, gave police a false name, and destroyed two glass cylinders that were later identified as paraphernalia used for ingesting illegal substances. Ortiz was charged with destroying or concealing evidence (Pen. Code, § 135), possession of unlawful paraphernalia (Health & Saf. Code, § 11364, subd. (a))
and using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Ortiz subsequently failed to meet with her probation officer as required and a bench warrant was issued for her arrest. In April 2015, the court denied probation. It sentenced her to the "midterm . . . which is four years local prison" on the Health and Safety Code section 11351.5 violation, "based on the fact this is an eighteenth criminal conviction."
In June 2015, the court denied Ortiz's request to reconsider the four-year prison sentence and instead resentenced her to parole. Ortiz appeals under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders).
We offered Ortiz the opportunity to file her own brief on appeal but she has not responded.
DISCUSSION
Appellate counsel indicates she is unable to identify any reasonably arguable issues for appeal and has asked this court to review the record for error. (Wende, supra, 25 Cal.3d 436.) We have reviewed the entire record consistent with the mandate of 2 Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have identified one issue for reversal on appeal.
Health and Safety Code section 11351.5 specifies the punishment for possession of cocaine base for sale. Ortiz was sentenced to prison to the four-year middle term. On the dates she committed the crime and subsequently pleaded guilty to it, the punishment for cocaine base possession for sale ranged from a three-year low term, a four-year middle term, to a five-year upper term. On September 28, 2014, the Legislature enacted the California Fair Sentencing Act, which amended Health and Safety Code section 11351.5 to reduce the punishment to a two-year low term, a three-year middle term, and a four-year upper term. This amendment became effective January 1, 2015. (Stats. 2014, ch. 749, §§ 1, 3.) The modification has been held to apply retroactively. (People v. Keith (2015) 235 Cal.App.4th 983, 985.)
Therefore, if the court intended to sentence Ortiz to the middle term, it erred by not correctly applying the modified statute's provision. Whether to impose the two-year low term, the three-year middle term, or the four-year upper term under the statute rests within the sound discretion of the trial court, not this reviewing court. (See People v. Keith, supra, 235 Cal.App.4th at p. 986 [resentencing upon remittitur issuance].)
Accordingly, we remand the matter for the trial court to resentence Ortiz.
3 DISPOSITION
The judgment of conviction is affirmed; the sentence is reversed and the matter remanded to the superior court with directions to resentence Darian Monique Ortiz in accordance with Health and Safety Code section 11351.5 as amended effective January 1, 2015. (See People v. Keith, supra, 235 Cal.App.4th at p. 986.) The superior court is to prepare an amended abstract of judgment reflecting that sentence and forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Keith B255005 · 2015-04-06
- People v. Wende Crim. 20851 · 1979-10-12