Filed 6/30/21 P. v. Ortiz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D076579 Plaintiff and Respondent, v. (Super. Ct. No. SCD279882) RAFAEL GUTIERREZ ORTIZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed in part; reversed in part with instructions. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent. A jury in August 2019 found defendant Rafael Gutierrez Ortiz guilty of selling a controlled substance (methamphetamine) (Health & Saf. Code, §11379, subd. (a)); and found true the prison priors (Pen. Code,1 § 677.5, subd. (b)). The court sentenced defendant to nine years in prison, the midterm of six years for the drug sales and one year each for three of the prison priors. On appeal, defendant contends the court erred by not construing his request to self-represent as a motion to substitute counsel and sua sponte conducting a Marsden2 hearing. He also contends, and the People agree, his three prison priors should be stricken under newly amended section 667.5. Finally, he contends the court erred in imposing various fines, fees, and assessments without first considering his ability to pay. As we explain, we agree defendant’s three prison priors should be stricken. Because we remand the cause for resentencing, we also decline under the unique facts of this case to decide whether the court erred in imposing the fines, fees, and assessments without first deciding defendant’s ability to pay, instead finding defendant may raise that issue at resentencing. In all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND William Neal of the San Diego Police Department testified he was working undercover in the East Village area of downtown San Diego on July 11, 2018. Officer Neal was in an area known for narcotic-related activity, and had personally made about 25 to 50 arrests in the area. Dressed in plain clothes and wired with a microphone, Officer Neal approached a 1 Unless otherwise noted, any further reference to sections is to the Penal Code. 2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 2 Hispanic male adult, later identified as defendant, and asked if he knew where he could get some “white,” which was “street slang” for methamphetamine. In response to how much he wanted, Officer Neal said a “dub,” which was slang for $20 of the drug. Officer Neal watched the Hispanic male leave and approach another male adult down the street. Officer Neal attempted …
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