Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Nos. RIF 103852 & RIF109597 Ronald L. Taylor, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P.J.
Defendant, Charles L. Hale, appeals from resentencing in two separate cases, which we describe below. Defendant ultimately abandoned one of his contentions on appeal and he and the People agree on the other two. Therefore, we reverse the sentence for one crime and its firearm use enhancement, affirm the remaining convictions, true findings and sentences and direct the trial court to amend the abstracts of judgment in both cases.
The facts surrounding these crimes can be found at this court’s opinions in People v. Hale, E039013, filed February 7, 2008, and People v. Ricketts, et al. E040370, filed December 15, 2008, and need not be repeated here.
PROCEDURAL BACKGROUND
In Case Number RIF109597 (hereinafter, “No. 97”) defendant was convicted by jury of kidnap to commit rape (Pen. Code, § 209), during which he used a firearm (§ 12022.53, subd. (b)), making criminal threats (§ 422), during which he used a handgun (§ 12022.5, subd. (a)(1)) and rape (§ 261, subd. (a)(2)) in concert (§ 264.1), during which he used a firearm (§ 12022.53, subd. (b)). All of these crimes occurred on March 19, 2003. During trial, defendant admitted that, if the jury convicted him of the instant offenses, he had committed them while out on bail in Case Number RIF103852 (hereinafter, “No. 52”), which was based on a drive-by shooting that occurred on May 30, 2002. On September 19, 2005, Judge Ronald Taylor, who presided at defendant’s trial in No. 97, sentenced him to life for the kidnapping conviction, plus 10 years for the firearm use attached to it and two years for making criminal threats, which was designated as the principal term, plus one year for the handgun use attached to it. Judge Taylor imposed, but stayed, a two-year term for defendant’s out-on-bail admission, postponing execution of that term until defendant was convicted in No. 52. Defendant filed his notice of appeal in this case on September 29, 2005.
All further statutory references are to the Penal Code unless otherwise indicated.
On March 21, 2006, defendant was convicted in No. 52 of willful, premeditated and deliberate attempted murder (§§ 664/187) and shooting from a vehicle (§ 12034, subd. (c)), during both of which a principal discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)) and assault with a semiautomatic firearm (§ 245, subd. (b)). The jury further found that all of the offenses were committed for the benefit of a gang (§ 186.22, subd. (b)) and were hate crimes (former § 422.75, subd. (c)). The probation report in that case listed defendant’s convictions and true findings in No. 97 and the sentences that were imposed for them and discussed the facts surrounding them. On June 13, 2006, defendant appeared for sentencing in No. 52 before Judge Helios Hernandez, who had presided over the trial of that case. Counsel for defendant asked that the sentence Judge Hernandez was about to impose in No. 52 be run concurrent with the sentence that had already been imposed in No. 97. Judge Hernandez observed that the sentences for two cases could be run consecutively and both must be resentenced at the same time. Judge Hernandez sentenced defendant in No. 52 to 15 years to life for the attempted murder, 25 years to life for the principal discharging a firearm, three years for the hate crime true finding, six years for the assault, plus five years for the gang true finding and three years for the hate crime true finding attached to it. He stayed the terms for the shooting from a car and its attendant true findings. Judge Hernandez then said, “I believe we have to resentence [No. 97] so that it comports with what we did today.” The parties were invited to comment and afterward, Judge Hernandez imposed a seven-year-to-life term for the aggravated kidnapping, plus 10 years for the gun use, eight months (one-third the midterm of two years) for the criminal threats, plus 16 months (one-third the midterm of four years) for the handgun use and two years for the out-on-bail true finding. Judge Hernandez stayed the terms for the rape and its gun use, “adopting th[e]... reasoning” used by Judge Taylor in doing the same, even though Judge Hernandez apparently did not have a transcript of Judge Taylor’s sentencing before him.
On June 20, 2006, defendant filed a notice of appeal in No. 52.
On February 7, 2008, this court, in defendant’s appeal in No. 97, affirmed all of defendant’s convictions and his sentences, except for his sentence for the criminal threats conviction and its attendant handgun use finding. As to those terms, this court remanded the matter to the trial court for it to make a determination whether they should be stayed pursuant to section 654.
On August 6, 2008, No. 97 was back before Judge Taylor for a determination whether to stay sentences for the criminal threats conviction and its gun use, as ordered by this court. The People informed Judge Taylor that Judge Hernandez had resentenced defendant on No. 97. Judge Taylor said that he would ask Judge Hernandez, who was the supervising judge of the criminal division of Superior Court, whether he wanted to resentence defendant on No. 97, or have Judge Taylor do it, in which case Judge Taylor would impose the sentence he originally pronounced, modified to be consistent with the opinion of this court.
On October 2, 2008, Judge Taylor stated that Judge Hernandez had asked Judge Taylor to resentence defendant in both cases. As to the issue this court, in our opinion, had asked Judge Taylor to address, the latter stated that there was no evidentiary basis for not staying the sentence for criminal threats and its handgun use true finding pursuant to section 654. Noting that he was not present during the trial of No. 52, and, therefore, had no knowledge of all the facts surrounding that case, Judge Taylor adopted the sentences imposed by Judge Hernandez in that case, which Judge Taylor determined to be the “principal case.” In No. 97, Judge Taylor imposed life for the aggravated kidnapping, 10 years for its firearm use, and 2 years for the while-on-bail true finding. Sentences for the criminal threats and its handgun use were stayed pursuant to section 654. After the prosecutor incorrectly informed Judge Taylor that he had originally run the terms for the rape and its firearm use true finding concurrent to the other sentences, the judge imposed a 7-year term for the rape and a 10-year term for the firearm use (which he incorrectly identified as being pursuant to section 12022.5, subd. (b)) and ran both concurrently with the other sentences.
However, the abstract of judgment correctly states that the firearm use true finding was pursuant to section 12022.53, subdivision (b).
Defendant filed a notice of appeal in both cases and those appeals are now before us.
On December 15, 2008, this court issued an opinion in No. 52, affirming all of defendant’s convictions and the true findings and the sentences imposed by Judge Hernandez for them, except for the hate crime true finding as to the assault, which we reversed, striking its sentence.
ISSUES AND DISCUSSION
1. Sentence for the Section 12022.53, subdivision (b) Enhancement for the Kidnapping in No. 97
In his opening brief, defendant contended that instead of imposing a 10-year sentence for the firearm use enhancement (§ 12022.53, subd (b)) connected to the kidnapping in No. 97, the sentencing court should have imposed one-third of that time, or three years, four months under section 1170.1. In his reply brief, defendant concedes that his argument was rejected by the California Supreme Court in People v. Felix (2000) 22 Cal.4th 651, 653, 656 (Felix). This court had rejected the same argument seven years before Felix in People v. Jackson (1993) 14 Cal.App.4th 1818, 1832 (Jackson) [Fourth Dist., Div. Two], which defendant’s research also failed to uncover.
Felix stated that it agreed with our holding in Jackson. (Felix, supra,22 Cal.4th at pp. 651, 656.)
2. Sentence for Rape and its Enhancement in No. 97
To reiterate, Judge Taylor originally stayed the sentence for the rape and its attendant firearm use enhancement pursuant to section 654. We affirmed that in our opinion in People v. Hale, E039013 on February 7, 2008. Judge Hernandez also stayed both sentences when he resentenced defendant on June 13, 2006. Judge Taylor imposed concurrent sentences for both when he resentenced defendant on October 2, 2008, but only after the prosecutor had incorrectly informed him that he had originally run both terms concurrently with the other sentences imposed. The parties agree that both terms should be stayed pursuant to section 654. Therefore, we will direct the trial court to stay them.
3. Sentence for Hate Crime Enhancement Attached to the Aggravate Assault in No. 52
To reiterate, Judge Hernandez originally imposed a three-year midterm for the hate crime enhancement attached to the aggravated assault in No. 52. When Judge Taylor resentenced defendant on October 2, 2008, he reimposed the same sentence. In December 2008, this court reversed the true finding on the basis that the evidence supporting it was insufficient. (People v. Ricketts, E040370, pp. 3, 38, 61.) As defendant correctly points out, there is no abstract in the record before this court omitting mention of the enhancement, which omission is appropriate in light of our opinion. Therefore, we will direct the trial court to amend the abstract accordingly.
DISPOSITION
The concurrent terms for rape and its firearm use enhancement in No. 97 are reversed. The trial court is directed to amend the indeterminate abstract of judgment in No. 97 to indicate that a term of life was imposed for the aggravated kidnapping, not 7 years to life as the abstract currently states, and to show the date of the hearing as October 2, 2008, not September 19, 2005. The trial court is further directed to amend the determinate abstract of judgment in No. 97 to show that the term for the rape (count 3) and its firearm use enhancement under section 12022.53, subdivision (b) are stayed pursuant to section 654. The date of the hearing on that abstract should also be changed to October 2, 2008, not September 19, 2005, as is currently stated. The trial court is directed to amend the indeterminate abstract of judgment in case No. 52 to show that a term of 25 years to life, not 25 years, was imposed for the firearm discharge enhancement attached to the attempted murder (count 1) and the judge is Judge Ronald Taylor, not Helios Hernandez. The trial court shall amend the determinate abstract in case No. 52 to show that the date of the hearing is October 2, 2008, not June 13, 2006 and the judge is Judge Ronald Taylor, and not Helios Hernandez. The trial court is further directed to omit any reference to the hate crime enhancement (former § 422.75, subd. (c)) attached to aggravated assault (count 2) on that abstract. The references on page two of the
indeterminate abstract to the decision on appeal should show the date of December 15, 2008, not October 2, 2008. In all other respects, the judgments are affirmed.
We concur: KING J., MILLER J.