Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUKCRCR0567210
Kline, P. J.
Timothy J. Anderson appeals from the sentence imposed on him on April 11, 2008, following the remand for resentencing ordered by this court on November 19, 2007. His court-appointed counsel has filed a brief raising no issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Much of the facts and proceedings are taken from our unpublished opinion in appellant’s initial appeal. (People v. Anderson (Nov. 19, 2007, A114344).)
On September 9, 2005, appellant admitted setting a fire to forestlands on numerous occasions; specifically, to a fire on July 10, 2003; two fires on August 25, 2003; a fire on September 11, 2003; two fires on July 14, 2004; two fires on August 5, 2004; a fire on August 20, 2004; a fire on August 12, 2005; a fire on August 25, 2005; a fire on August 26, 2005; and two fires on September 2, 2005. He also admitted using incendiary devices and showed investigators how he had made them. A search of his property yielded cigarettes consistent with the types used in the incendiary devices and some other scraps of paper that had been used to create the devices. In addition to the home burned in the fire of August 20, 2004, the fire on August 12, 2005 burned a residential dwelling at 280 Watson Road.
On June 23, 2006, following his plea of guilty to three counts of arson of forest land (Pen. Code, § 451, subd (c)) and two counts of arson of an inhabited structure (§ 451, subd. (b)), and his admission as to each count that he had used a device to accelerate or delay ignition (§ 451, subd. (a)(5)), appellant was originally sentenced to a total term of 23 years as follows: the upper term of eight years on count 5 (§ 451, subd. (b) [ arson of an inhabited structure]), a consecutive sentence of one year eight months on count 6 (§ 451, subd. (c) [arson of forestland]), and one-third midterm sentences of one year four months on each of counts 1, 3 and 8. The court imposed the midterm of four years on special allegation 1 and imposed a one-third midterm consecutive sentence of one year four months on each of the remaining special allegations (counts 3, 5, 6, & 8). Appellant was ordered to pay restitution to the victims in the amount of $135,211.02.
All statutory references are to the Penal Code.
“In imposing the aggravated term on count 5 (the August 12, 2005 arson of an inhabited structure), the trial court described the aggravating circumstances: ‘I agree with the probation assessment that the crime involved a threat of great bodily harm and damage to personal and private property because again, these fires, they may be small to start out with, but it’s certainly unpredictable where they are going to go. The people in the area in which these fires were set certainly were at risk, as well as their personal property. [¶] It does appear to the court that these fires were planned. [¶] The crimes that were involved—the fires that did occur involved significant damage both to forestland vegetation and the residential structures of great monetary value.’ The court also considered the circumstances in mitigation, including that ‘the defendant does not have a prior criminal record. He did voluntarily acknowledge wrongdoing at an early stage. And he may be suffering from a mental condition that could significantly reduce culpability for the crime.’ ” (People v. Anderson, supra, A114344.)
On June 23, 2006, appellant filed a notice of appeal (case No. A114344) contending that imposition of the upper term denied him rights under the Sixth Amendment as explicated in Cunningham v. California (2007) 549 U.S. 270. Agreeing with that contention, we remanded the case for resentencing.
Resentencing was conducted on April 11, 2008. After the court indicated that it intended to simply reduce the base sentence on count 5 from the aggravated eight-year term to the five-year midterm, the district attorney argued that the court should instead make count 6 the base term and impose the aggravated term for that offense. Rejecting that alternative, the trial court resentenced appellant to the midterm of five years on count 5, and imposed the same consecutive sentence of one year eight months on count 6, and one-third midterm sentences of one year four months on each of counts 1, 3 and 8. The court imposed the midterm of four years on special allegation 1, and imposed a one-third midterm of four years on each of the remaining special allegations (counts 3, 5, 6 & 8).
The effect of resentencing was to reduce appellant’s total term of imprisonment from 23 years to 20 years.
The court also gave appellant the same credits he was originally awarded; i.e., 267 days of credit for time served and 40 days of work-time credit after imposing the limitation on such credit mandated by section 2933.1. The court reduced the restitution fund fine from $5,000 to $4,000, imposed a victim restitution fund fine (§ 1202.4, subd. (b)) in the same amount, and authorized the Department of Corrections to make appropriate deductions from appellant’s wages and trust account deposits. (§ 2085.5) The court also re-imposed the $135,000 victim restitution fine.
Appellant filed a timely notice of appeal from the resentencing on June 9, 2008. The appeal is authorized by section 1237.5
Discussion
The validity of appellant’s original plea is no longer before us, and resentencing did not require him to waive and appellant did not waive any rights.
There was no sentencing error.
There is no reason to question appellant’s mental competence to participate in the sentencing proceeding, at which he was represented by able counsel.
There are no legal issues that require further briefing.
The judgment and new sentence imposed are affirmed.
We concur: Lambden, J., Richman, J.