Filed 11/23/05 P. v. Martinez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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THE PEOPLE, Plaintiff and Respondent, v. JOSE FILADELFO MARTINEZ, Defendant and Appellant.

C049273 (Super. Ct. No. 046140)

Defendant Jose Filadelfo Martinez appeals from the sentence imposed following his plea of guilty to driving with a blood alcohol level of 0.08 percent or higher and causing bodily injury. (Veh. Code, § 23153, subd. (b).)^[1] On appeal, defendant contends the trial court erred in ordering him to serve 120 days in county jail as a condition of probation as it did not understand it had discretion to impose a lesser term and that the order revoking defendant's license for three years was unauthorized because a one-year suspension is expressly mandated by statute. The record demonstrates both portions of this sentence were as a result of the trial court believing the sentence was mandatory. Accordingly, we shall vacate the sentence and remand to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On August 22, 2004, defendant collided with a vehicle driven by Adrian Inguanzo. Inguanzo was rendered unconscious and sustained injuries to the left side of his body including a sprained foot, ankle, hip, shoulder and arm. Defendant was driving with a blood alcohol content of 0.16 percent.

Defendant was charged with driving under the influence of alcohol and causing injury (§ 23153, subd. (a)‑‑count 1) and driving with a blood alcohol level at 0.08 percent or above and causing injury (§ 23153, subd. (b)‑‑count 2). Defendant pleaded no contest to count 2 and count 1 was dismissed.

The court suspended imposition of sentence and placed defendant on four years' felony probation. As a condition of probation, defendant was ordered to serve 120 days in the county jail and his driving privileges were revoked for three years.

The probation report noted defendant had â€