Opinion
H042892
06-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOHN ESTRADA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1497333)
Defendant was sentenced to concurrent 32-month prison terms for two offenses involving unlawful possession of a firearm. He argues on appeal that the trial court erred by failing to stay imposition of sentence for one of those offenses under Penal Code section 654. The Attorney General counters that defendant has abandoned his claim under California Rules of Court, rule 4.412(b) because he agreed to a specific prison term and he did not object to the imposition of concurrent sentences in the trial court. We will dismiss this appeal as moot because defendant has fully served his sentence, and resolution of the issue presented will have no practical effect on him.
Defendant was charged by felony complaint with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1), and carrying a concealed firearm in a vehicle with a prior felony conviction (id., § 25400, subd. (a)(1); count 2). The complaint, which alleged four prior prison terms (id., § 667.5, subd. (b)) and one prior strike (id., §§ 667, subds. (b)-(i); 1170.12), exposed defendant to a total of 10 years imprisonment.
Defendant rejected the prosecution's plea offer to a "32-month top bottom." Instead, he pleaded no contest to counts 1 and 2 and admitted the prior convictions after the trial court indicated a maximum 32-month sentence "with no promises." Defendant checked and initialed boxes on a waiver of rights form stating: "I understand the court has given a non-binding, tentative indicated sentence of: [¶] State prison for 32 mos Top," and "I understand that upon my release from prison, I will be placed on parole for up to 3 [years] ... or on post-release community supervision for up to 3 years."
Defendant moved to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, hoping to enter residential drug treatment instead of going to prison. The court denied the motion, sentenced defendant to concurrent 32-month terms on counts 1 and 2, and struck the additional punishment for the four prison priors. Responding to defendant's concern that the sentence was being imposed "with the necessary legal basis," the prosecutor stated: "They are essentially alternative theories of culpability, so I think the Court can run the two counts concurrently." The discussion continued: [The Court] "Because they involve the same act?" [¶] [Defendant] "That's correct, Your Honor." [¶] [Prosecutor] "Yes." [¶] [The Court] "So there's a stipulation they're -- that's a factual matter, these counts constitute the same act and, therefore, I will impose a concurrent sentence pursuant to the three strikes sentence." [¶] [Prosecutor] "That's my understanding of the state of the law."
Defendant was sentenced in September 2015, at which time he received 645 days of presentence credit. In light of that credit, it appeared to us that his sentence would have been fully served in early 2016, before his opening brief was filed. Accordingly we invited supplemental briefing to address whether this appeal should be dismissed as moot. Defendant acknowledges that he has served his sentence, and that resolution of the appeal will have no practical effect on him. He argues, however, that proper application of Penal Code section 654 is an important issue, and that we should decide this case to guide trial courts confronted with similar cases.
Although proper application of any provision of the Penal Code is important, we are not persuaded that the issue presented here is likely to recur absent appellate guidance. (See People v. Harrison (2013) 57 Cal.4th 1211, 1218.)
DISPOSITION
The appeal is dismissed as moot.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Rushing, P. J. /s/_________
Premo, J.