Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVI01585 John B. Gibson, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Robert Alan Hecker appeals from the trial court’s denial of his request to recall the sentence and from the trial court’s alleged failure to allow him to withdraw his guilty plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case was a prostitute who testified during a preliminary hearing that she willingly got into defendant’s car and agreed to go to defendant’s house on April 1, 1994, where the two engaged in consensual vaginal sex and oral copulation. Defendant paid her $40. When she wanted a ride home as originally agreed, defendant refused and said he wanted her to stay the whole night. As she was leaving to walk home, he hit her twice on the head with a club or metal pipe. As a result of this painful blow, she dropped to the floor, and there was “[a] lot of blood” coming from her head. Defendant treated the victim’s head wound with hydrogen peroxide and a bandage. Defendant then blindfolded her using tape, gauze, and a rag.
The parties stipulated that the preliminary hearing transcript provided a factual basis for defendant’s guilty plea.
While she was blindfolded, defendant tapped the victim on the shoulder a couple of times with “another pipe.” He threatened to hit her again if she did not do everything he told her to do. He also told her if he hit her again it would not just “crack” her skull like the first time, it would “cave [her] skull.” Defendant also put a gun up to the victim’s right cheek and told her he would shoot her if she got more than an arm’s length away from him. Defendant then made the victim take off her clothes and said she was going to give him what he wanted and “it wasn’t going to cost him anything.” He also cut the victim’s hair. To repay defendant for treating the victim’s head wound, defendant forced the victim to have vaginal sex and to perform oral copulation on him.
Defendant held the victim captive from April 1, 1994 until April 11, 1994. During this time, the victim said she was kept in a closet. She was blindfolded, her hands were tied behind her back, her ankles were bound, and she was gagged using a sock and duct tape. The victim was removed from the closet at various times and unbound so she could perform sexual acts. Defendant repeatedly threatened her with the pipes and the gun.
At some point, defendant took the victim out to his garage and put her in the trunk of his car. Before putting her into the trunk, he put her inside a cloth duffel bag with a draw string and pulled the draw string closed. She was removed from the trunk at various times and forced to perform acts of oral copulation and sodomy. At one point, the victim was left inside the trunk for 24 hours.
The victim also recalled defendant allowing her to smoke a cigarette while she leaned against a box in the garage. Defendant told her he made the box and planned to keep her in it “until his son turned of age.”
On the afternoon of April 11, 1994, after taking the bindings off of her hands and ankles, defendant left the victim alone in the kitchen to eat and went into another room. While defendant was in the other room, the victim was able to lift the blindfold up so she could see and then escaped through a sliding glass door.
Defendant was charged by amended information filed October 13, 1994, with the following counts: Count 1, forcible false imprisonment (Pen. Code, § 236) with personal use of a deadly weapon (a pipe) (§ 12022, subd. (b)), and personal use of a handgun (§ 12022.5, subd. (a)) with infliction of great bodily injury (§ 12022.7); count 2, assault with a deadly weapon (a pipe) (§ 245, subd. (a)(1)) with infliction of great bodily injury (§ 12022.7); count 3, assault with a firearm (a handgun) (§ 245, subd. (a)(2)) and personal use of a firearm (§ 12022.5, subd. (a)); counts 4 and 5, forcible rape (§ 261, subd. (a)(2)), with personal use of a handgun (§ 12022.5, subd. (a)) and with infliction of great bodily injury as to count 4 (§ 12022.8); counts 6 through 11, forcible oral copulation (§ 288a, subd. (c)) while armed with a firearm (§ 12033.3, subd. (b)) and as to count 6, personal use of a handgun (§ 12022.5, subd. (a)); and counts 12 and 13, sodomy by use of force (§ 286, subd. (c)) while armed with a deadly weapon (§ 12022.3, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On February 13, 1996, pursuant to a written plea agreement, defendant pled guilty to the following counts and enhancements: count 1, false imprisonment with personal use of a deadly weapon (a pipe), personal use of a handgun, and infliction of great bodily injury; count 2, assault with a deadly weapon, a pipe, and infliction of great bodily injury; count 4, forcible rape, with personal use of a handgun and infliction of great bodily injury; and counts 7 and 10, forcible oral copulation. According to the plea agreement, defendant could be sentenced to “no more than 30 (thirty) years” in state prison.
On March 29, 1996, the court followed the plea agreement by sentencing defendant to a total of 30 years in state prison. Pursuant to the plea agreement, all other counts and enhancements were dismissed and stricken.
Defendant appealed. We affirmed the judgment in an nonpublished opinion. (People v. Hecker (Jan. 30, 1998, E018412) [nonpub. opn.].) Defendant also filed four separate petitions for writ of habeas corpus raising various issues. All four of these petitions were denied.
On December 31, 2009, defendant requested we take judicial notice of these other cases. We granted the request in an order filed January 12, 2010, and took judicial notice of defendant’s direct appeal in case No. E018412, as well as his four petitions for writ of habeas corpus (case Nos. E020521, E024504, E024592 & E047213). Defendant then filed a second request for judicial notice on February 22, 2010, requesting that we take judicial notice of certain excerpts from the clerk’s transcript. However, it is unnecessary for us to take judicial notice of these excerpts because they are already part of the record in this appeal. Therefore, defendant’s second request for judicial notice filed February 22, 2010 is denied.
On December 26, 2008, a correctional case records analyst from the Division of Adult Institutions sent a letter to the trial court seeking review of defendant’s file, because it appeared the sentence on count 2, assault with a deadly weapon (a pipe), might have been imposed in violation of section 1170.1, subdivision (a). Defendant also sent letters to the court seeking a recall and/or a correction of his sentence on various grounds. In response, the trial court set a “sentencing clarification” hearing for April 27, 2009, and ordered defendant transported to court for the hearing.
During the sentencing clarification hearing on April 27, 2009, defendant argued his plea and sentence were illegal. He also argued he should be allowed to withdraw his plea. The trial court told defendant, “I’m no longer able to exercise jurisdiction over your matter.” On June 12, 2009, defendant filed a notice of appeal indicating he wished to challenge an “illegal sentence, ” pursuant to People v. Hill (1986) 185 Cal.App.3d 831, as well as the validity of his plea. Defendant also requested a certificate of probable cause pursuant to section 1237.5, which the trial court granted on June 12, 2009. We appointed counsel on appeal.
DISCUSSION
Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. On December 31, 2009, we granted defendant an opportunity to file a supplemental brief. Defendant filed a supplemental brief on February 22, 2010.
In his supplemental brief, defendant contends the trial court erroneously concluded it did not have jurisdiction to recall his “illegal sentence.” In support of this argument, defendant’s notice of appeal cites the case entitled People v. Hill, supra, 185 Cal.App.3d 831. Based on Hill, defendant believes the trial court had jurisdiction to recall and then reconsider the original sentence. According to Hill, section 1170, subdivision (d), allows the trial court to recall the sentence on its own motion within a limited time or at any time upon recommendation by specific prison officials. (Hill, at p. 843.) When a defendant is resentenced pursuant to section 1170, subdivision (d), the trial court may impose any sentence that could have been imposed originally, so long as the new aggregate sentence does not exceed the original one. (Hill, at pp. 834-835.) However, Hill does not stand for the proposition that recall and resentencing under section 1170, subdivision (d), are mandatory.
As noted above, this is the same case cited in the letter from the analyst at the Division of Adult Institutions questioning the validity of the full consecutive term imposed by the trial court on count 2.
Section 1170, subdivision (d), states in part as follows: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence....”
Here, the trial court was correct in concluding it did not have authority to recall defendant’s sentence under section 1170, subdivision (d). First, defendant was committed to state prison on March 29, 1996, and the 120-day limitation in section 1170, subdivision (d), for the court to act on its own motion had long since expired. Second, there was no recommendation for a recall by “the secretary or the Board of Parole Hearings.” In other words, a letter from the analyst at the Division of Adult Institutions was not enough to trigger the court’s jurisdiction to recall the sentence under section 1170, subdivision (d). Even if there was a recommendation for a recall from an appropriate official, our review of the record reveals no error in imposing a full consecutive term of three years on count 2 under section 1170.1, subdivision (a). (See §§ 1170.1, subd. (a), 667.6, subds. (d) & (e); People v. Belmontes (1983) 34 Cal.3d 335, 345-346; People v. Price (1984) 151 Cal.App.3d 803, 816-817.)
In his supplemental brief, defendant also argues the trial court abused its discretion at the hearing on April 27, 2009, because it did not allow him to withdraw his plea under section 1018. Section 1018 limits the court’s authority to withdraw a plea to “any time before judgment.” The judgment in this case was entered against defendant long ago on March 29, 1996. The trial court therefore did not have authority under section 1018 to allow defendant to withdraw his plea at this late date. We therefore conclude there was no abuse of discretion.
Having undertaken an examination of the entire record, we find no arguable errors that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., KING J.