Filed 8/25/20 P. v. Pinho CA1/3
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,
             Plaintiff and Respondent,
                                                                        A157247
 v.
 KEVIN MICHAEL PINHO,                                                   (Del Norte County
                                                                        Super. Ct. No. CRF 19-9044)
             Defendant and Appellant.


         Following a jury trial, Kevin Michael Pinho was convicted of driving or
taking a vehicle without consent and sentenced to seven years in state prison.
On appeal, he contends (1) a one-year sentence enhancement due to his
service of a prior term in prison must be stricken due to a recent amendment
to Penal Code1 section 667.5, subdivision (b); and (2) his trial counsel was
ineffective for failing to object to the imposition of fines, fees, and
assessments. We agree the prior prison term enhancement must be stricken
and remand for resentencing.
                                                  BACKGROUND
         In July 2018, California Highway Patrol (CHP) Officer Tyler Krueger
and his partner were patrolling Highway 101, just south of the Oregon
border. They pulled over a van going above the speed limit. The driver,


         1   All undesignated statutory references are to the Penal Code.
identified as Pinho by Officer Krueger at trial, did not have a driver’s license,
proof of insurance, or vehicle registration. He gave Officer Krueger a couple
of different names and driver’s license numbers, none of which could be
verified through CHP dispatch. Pinho said his aunt loaned him the van.
      When the officers were unable to confirm Pinho’s identity, they placed
him under arrest and began an inventory search of the van. During the
search, Pinho fled. Officer Krueger chased him on foot and detained him
about a quarter of a mile from the traffic stop.
      CHP officers found paperwork in the van indicating it was registered to
Robert H. in Eugene, Oregon. When he was contacted, Robert H. told officers
that he was in the process of reporting the vehicle as stolen. At trial,
Jennifer H., the van’s coowner, said she had parked the van in the driveway
of her home in Port Orford, Oregon and left the keys in the cup holder. The
next morning, the van was missing and she reported it stolen. She did not
know Pinho and had not given anyone permission to drive the van.
      Pinho testified that around the time of his arrest, his mother called him
in Port Orford and asked for help with his father, who was in the hospital in
Eureka suffering from late-stage leukemia. An aunt told him he could
borrow a vehicle that she had to drive to Eureka. She gave him keys to a
van, which she said she borrowed from an acquaintance.
      Pinho testified that he did not steal the van and that his willingness to
pull over showed that he did not know the van was stolen. He lied about his
identity to Officer Krueger because he was on parole in Oregon, and if
arrested, he would not have been able to see his father before he died. He
fled after arrest because he was not in the “right state of mind” due to the
stressful situation with his father.




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      Pinho was charged with felony driving or taking a vehicle without
consent under Vehicle Code section 10851, subdivision (a), and six
misdemeanor offenses. The information alleged a sentence enhancement
pursuant to section 667.5, subdivision (b) because Pinho had served a prior
term in prison, and another enhancement for his conviction of a prior strike
offense pursuant to section 1170.12, subdivision (c)(1). Both were based on a
2007 robbery conviction. Pinho admitted six misdemeanor offenses and went
to trial on the felony charge. The jury found him guilty.
      The trial court sentenced Pinho to seven years in state prison. It
imposed the aggravated term of three years, doubled for the prior strike
pursuant to section 1170.12, subdivision (c)(1). It also imposed a one-year
enhancement pursuant to section 667.5, subdivision (b) for Pinho’s prior
prison term. The sentences for the misdemeanors ranged from three months
to one year each to run concurrently. The court imposed $344 in restitution
to Jennifer H., as well as a $40 court security fee (§ 1465.8), a $30 conviction
assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4,
subd. (b).) Pinho appeals.
                                DISCUSSION
A.    Senate Bill No. 136
      Pinho contends that, following the enactment of Senate Bill No. 136
(2019–2020 Reg. Sess.) (Senate Bill 136), his one-year enhancement for a
prior term in prison pursuant to section 667.5, subdivision (b) must be
stricken.
      Senate Bill 136, which became effective on January 1, 2020, amended
section 667.5, subdivision (b) to limit the enhancement to prior imprisonment
for specified sexually violent offenses. (See People v. Lopez (2019)
42 Cal.App.5th 337, 340–341.)



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      The parties agree that Pinho’s prior imprisonment for burglary no
longer qualifies under section 667.5, subdivision (b), so his prior prison term
enhancement must be stricken. We also agree. (See People v. Jennings
(2019) 42 Cal.App.5th 664, 681–682.) Accordingly, Pinho’s one-year prior
prison term enhancement imposed pursuant to section 667.5, subdivision (b)
is stricken.
      The People state that we should remand for full resentencing because
the court did not impose the maximum possible sentence, as indicated by the
concurrent sentences imposed for the six misdemeanors. Pinho asserts no
view regarding a possible remand. “[W]hen part of a sentence is stricken on
review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.)
Remand for resentencing is proper.
B.    Ineffective Assistance of Counsel
      Pinho contends his trial counsel provided deficient representation by
failing to object to the imposition of fines, fees or assessments at sentencing.
He contends at the time of sentencing, controlling law required a hearing on
his ability to pay prior to the imposition of such fines and assessments, citing
People v. Dueñas (2019) 30 Cal.App.5th 1157. In Dueñas, the court held an
indigent defendant, who was a homeless mother of two young children and
suffered from cerebral palsy with a history of unpaid court-ordered
assessments, was entitled to a hearing on her ability to pay before the trial
court imposed new assessments, fees, and fines. (Id. at pp. 1160–1161, 1168.)
Pinho states that reasonably competent counsel would have invoked Dueñas
and requested the trial court to strike the restitution fine, criminal conviction




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assessment, and court operations fee because the record showed he had no
ability to pay them.
      In light of our remand for full resentencing, we shall not address
Pinho’s ineffective assistance claim. On remand, Pinho is free to assert the
arguments he believes his trial attorney should have made. (See People v.
Hill (1986) 185 Cal.App.3d 831, 834 [“When a case is remanded for
resentencing by an appellate court, the trial court is entitled to consider the
entire sentencing scheme.”].)
                                DISPOSITION
      The one-year sentence enhancement imposed pursuant to section 667.5,
subdivision (b) is stricken and this case is remanded for resentencing. On
remand, Pinho may object to the imposition of fines, fees, and assessments
imposed by the trial court and request a hearing on his inability to pay them.
After resentencing Pinho, the trial court is directed to issue an amended
abstract of judgment and forward a certified copy thereof to the Department
of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.




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                                    ____________________________
                                    Siggins, P. J.


We concur:


_____________________________
Petrou, J.



_____________________________
Jackson, J.




A157247
People v. Pinho




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