Opinion
F085449
11-16-2023
THE PEOPLE, Plaintiff and Respondent, v. ROMAN ESCARSEGA, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF371049, Melinda Myrle Reed, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
On September 22, 2022, defendant Roman Escarsega was convicted by a jury of two counts of second degree robbery and one count of discharging a firearm with gross negligence. The jury also found certain firearm enhancements true. The trial court imposed an aggregate sentence of 24 years, which included a 20-year firearm enhancement. On appeal, defendant argues that the trial court abused its discretion at sentencing by declining to dismiss the firearm enhancements.
We reviewed the record, and it appeared that the sentence on one of the robbery counts is unauthorized. We ordered supplemental briefing on this issue. The parties filed their supplemental briefs, and both agree that the sentence is unauthorized and ask us to remand for resentencing.
Accordingly, we vacate the sentence and remand this case to the trial court for a full resentencing.
Because we vacate the unauthorized sentence, we do not address defendant's argument that the trial court abused its discretion at sentencing by declining to dismiss the enhancements.
PROCEDURAL HISTORY
On January 29, 2020, the Tulare County District Attorney filed an information charging defendant with two counts of willful, deliberate, and premeditated attempted murder of a peace officer (Pen. Code, §§ 187, subd. (a), 664, subds. (e) &(f); counts 1 &2), two counts of second degree robbery (§ 211; counts 3 &4); and one count of discharge of a firearm with gross negligence (§ 246.3, subd. (a); count 5). As to all counts, the information alleged that defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); used a firearm (§ 12022.5, subd. (a)(1)); and personally used a firearm (§ 12022.53, subd. (b)).
All further undesignated statutory references are to the Penal Code.
On September 22, 2022, defendant was found guilty by a jury on counts 3, 4, and 5. The jury also found true all three firearm enhancements for the second degree robbery convictions (counts 3 &4). Defendant was acquitted of the attempted murder charges in counts 1 and 2.
The amended minute order memorializing the verdict contains errors. On counts 3 and 4, the jury found true that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision. (c). However, these enhancements are not reflected in the minute order. We may correct a clerical error in the record. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order that these errors be corrected.
On December 1, 2022, the trial court denied defendant's request to dismiss the firearm enhancements. The trial court imposed an aggregate term of 24 years. As to count 3, defendant was sentenced to three years (the middle term), plus a consecutive 20-year firearm enhancement; as to count 4, defendant was sentenced to a consecutive term of one year (one-third the middle term), plus a concurrent 20-year firearm enhancement; and as to count 5, defendant was sentenced to two years (the middle term), stayed pursuant to section 654.
On December 13, 2022, defendant filed a notice of appeal.
Because the issues before us are purely legal sentencing issues, we omit any summary of the facts underlying the offenses.
As noted above, on count 3, defendant was sentenced to three years, plus a consecutive 20-year firearm enhancement; on count 4, defendant was sentenced to a consecutive term of one year, plus a concurrent 20-year firearm enhancement.
Because the one-year subordinate term on count 4 was imposed consecutively to the principal term on count 3, but the 20-year firearm enhancement on count 4 was imposed concurrently, we ordered the parties to submit supplemental letter briefs "on the issue of whether the sentence on count 4 is unauthorized." On October 9, 2023, the parties filed their supplemental letter briefs. The parties agree that the sentence on count 4 is unauthorized and ask us to remand the case for resentencing.
An unauthorized sentence "is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Subdivision (a) of section 1170.1 requires that, in the determinate sentencing context, a "subordinate term for each consecutive offense ... consist of one-third of the middle term of imprisonment prescribed for each other felony conviction ... and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." A trial court may not impose a consecutive term on a felony conviction, but also impose the offense-specific enhancement on that offense concurrently-such a sentence is unauthorized. (§ 1170.1, subds. (a) &(d)(1); People v. Oates (2004) 32 Cal.4th 1048, 1065 [Enhancements" 'do not constitute separate crimes or offenses, but simply are the basis for the imposition of additional punishment for the underlying substantive offense. [Citation.]' "]; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311 ["In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned [the defendant's] sentence in an unauthorized manner under the sentencing procedure."].) Accordingly, we conclude that the sentence on count 4 is unauthorized because the one-year subordinate term was imposed consecutively, but the 20-year firearm enhancement was imposed concurrently.
In their supplemental brief, the People also argue that the sentence on count 4 is unauthorized because, pursuant to section 12022.53, subdivision (c), the trial court was required to impose the 20-year firearm enhancement consecutively. As we find that the sentence is unauthorized for a different reason and remand for a full resentencing, we need not resolve that issue. Nevertheless, we repeat the language of section 12022.53, subdivisions (c) and (h) and note that whether to impose or strike the enhancement is within the scope of remand: "Notwithstanding any other law, a person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (§ 12022.53, subd. (c).) "The court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)
Accordingly, we will vacate the sentence and remand the case for a full resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893.) As we are remanding for a full resentencing, we need not resolve whether the trial court abused its discretion by declining to dismiss the firearm enhancements pursuant to section 1385.
DISPOSITION
The sentence is vacated. The matter is remanded to the trial court to conduct a full resentencing consistent with this opinion. Additionally, the trial court shall issue a second amended minute order memorializing the verdict to add that, on counts 3 and 4, the jury found true that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c) and forward the same to the appropriate entities.
[*] Before Hill, P. J., Detjen, J. and Pena, J.