Opinion
G044441
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ROLANDO SEGURA GARCIA, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. INF059800 & INF062462)
OPINION
Appeal from a judgment of the Superior Court of Riverside County, Jorge C. Hernandez, Judge. Affirmed as modified.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
As set out in our first opinion (People v. Garcia (Apr. 28, 2010, G042557) [nonpub. opn.]; Garcia 1), after defendant Jose Rolando Segura Garcia was convicted of multiple crimes in two different cases, the court sentenced him in both cases together for a total term of 17 years, 4 months. (Garcia 1, supra, G042557, pp. 2, 3.) Although affirming the judgments, we remanded the case for resentencing because the court erroneously selected a principal term in each case. (Garcia 1, supra, G042557, pp. 6-7.) On remand, the court resentenced defendant selecting only one principal term. In resentencing the court imposed a sentence for one count consecutively instead of concurrently as was done in the original sentence, to more closely approximate the original total term. The new sentence totaled 15 years and 4 months.
Defendant argues imposing a consecutive rather than concurrent term was an abuse of discretion, without any support in the record. We disagree. The Attorney General argues that a conviction for receiving stolen property was barred because defendant was also convicted of theft of the same property. We agree and modify the judgment to reverse the receipt of stolen property conviction but otherwise affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The facts are not in issue and a detailed summary may be found in Garcia 1, supra, G042557, pp. 3-5. Suffice it to say that in case No. INF059800, defendant was convicted of assault with a deadly weapon, two counts of child endangerment, felony vandalism, and spousal battery, with one prior strike. In case No. INF062462, defendant was convicted of stalking in violation of a restraining order, vehicle theft, receiving stolen property, false imprisonment, spousal battery, and five counts of violating a protective order, with a prior strike. The first three offenses were committed while defendant was on bail.
In case No. INF059800, in which defendant's wife was the victim, the court selected one the child endangerment convictions for the principal term, imposing the midterm of four years. The midterm was also imposed for the assault, second child endangerment, and vandalism counts, three, four, and two years, respectively, to run concurrently. Based on the prior strike all of the terms were doubled. The spousal battery garnered a sentence of six months, which merged with the remainder of the sentence.
In case No. INF062462, involving defendant's girlfriend, using the stalking count as the principal term, the court sentenced defendant to the midterm of three years. It imposed eight months for the car theft, to run consecutively. For the false imprisonment and spousal battery counts the sentences were two years and three years, respectively, to run concurrently. All terms were doubled due to the strike. Defendant received six months for each of the misdemeanor protective order violations; those sentences merged into felony sentence. The court imposed an additional two years for the bail finding and stayed sentence on the false imprisonment count. The total sentence for this case was 9 years, 4 months and the total sentence for both cases was 17 years, 4 months.
When the case was remanded the prosecution filed a sentencing brief asking the court to have the spousal battery sentence run consecutively to make the total sentence as close as possible to the total original sentence, claiming it best approximate the value of the first sentencing judge had given to the case. Defense counsel sought to have the court limit the resentencing to merely correcting the error from the first sentence. He argued primarily that the court had "neither the ability nor the jurisdiction to [otherwise] modify" any part of the sentence.
The trial judge disagreed, noting that because the cases were remanded for resentencing he was "free to do whatever the hell [he] want[ed] on it." He continued that he was not going to do that, however, because he thought the original sentencing judge "had . . . a goal in mind[] when he was doing the sentencing." Therefore, the court "deviate[d] from [the] original sentence" on the spousal battery count to have it run concurrently "in order to keep with the spirit of the original sentencing."
The court imposed the same sentence in case No. INF059800. In case No. INF062462, the sentence was as follows: two years for stalking, one year, four months for vehicle theft, both consecutive to the sentence in the first case and both doubled. One year, six months for receiving stolen property, stayed pursuant to section 654. For false imprisonment, one year, four months and for the five protective order violations, six months each, all of these to run concurrently. For spousal battery, two years to run consecutively. For the bail enhancement, two years also to run consecutively.
The total sentence for the two cases was 15 years, 4 months.
DISCUSSION
Defendant challenges only the sentence for spousal battery in case No. INF062462, specifically arguing that the court erred in having it run consecutively instead of concurrently as was done at the first sentencing because it did not base the sentence on any proper criteria.
California Rules of Court, rule 4.425 sets out a list of factors a court should employ in deciding whether to impose a consecutive sentence as opposed to a concurrent one. They do not include the fact a prior sentencing judge may have had a total sentencing goal in mind. Yet the record reflects that is the only criterion on which the trial court relied to run the sentence on the spousal battery consecutively instead of concurrently. Defendant maintains there is nothing in the record to show the sentencing judge had a specific goal in mind in imposing the original sentence. The Attorney General argues to the contrary, but cites to nothing in the record to support the claim.
In People v. Castaneda (1999) 75 Cal.App.4th 611, after an original sentence totaling 10 years, derived in part from reliance on a middle term, was reversed due to improper use of two enhancements, on resentence the court imposed an aggregate term of eight years, using a high term instead of a midterm. The defendant challenged the new sentence on the same grounds as those in the case before us.
The appellate court affirmed, stating, while "[a] judge's subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case, cannot be ignored" and "is not improper," it must be "channeled by the guided discretion outlined in the myriad of statutory sentencing criteria. [Citations.]" (People v. Castaneda, supra, at p. 614.) Moreover, the total term of the new sentence cannot exceed the original. (Ibid.)In Castaneda, in resentencing defendant the trial court relied on a factor in aggravation contained in the probation report. Thus, even assuming the court had a total sentence in mind, a proper factor supported its decision.
Here, we have no evidence the trial court relied on anything other than the perceived sentencing goal of the original trial judge. Because this is not one of the factors on which a court may rely in selecting a consecutive term (Cal. Rules of Court, rule 4.425), the trial court erred.
However, this error was harmless and remand for resentence would "be an idle and unnecessary" act. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889.) A trial judge has broad discretion in imposing a consecutive rather than concurrent sentence. (People v. Tillotson (2007) 157 Cal.App.4th 517, 545.) The record shows there were factors on which the court could properly rely in selecting a consecutive sentence, including that the crimes were independent of each other, involved separate violent acts, and were committed at different times and places. (Cal. Rules of Court, rule 4.425; Garcia 1, supra, G042557, pp. 3-4) Any of these would be sufficient to impose a consecutive term. (People v. Coelho, supra, 89 Cal.App.4th at pp. 889-890.) Based on the judge's comments at sentencing it appears to be a given he would sentence defendant to the same term and could properly do so. (Ibid.) Therefore we will not remand for resentencing.
As part of its defense of the sentence the Attorney General argues that, pursuant to section 654, which prohibits multiple punishment for one act or an indivisible course of conduct, the concurrent term for false imprisonment in case No. INF062462 should have been stayed. In support she maintains that the original sentencing court "apparently belie[ved]" the spousal battery conviction was part of the same course of conduct. But apart from this conclusory statement there is no reasoned legal argument to show the basis for the alleged error. Defendant argues to the contrary and we see no error.
Whether a criminal act is subject to multiple punishments is a question of fact and the trial court has wide discretion in making such a determination. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) We affirm such a finding so long as it is supported by substantial evidence, viewing the evidence in the light most favorable to the judgment and assuming the truth of all evidence on which the court could reasonably rely in making its decision. (Id. at p. 916.) Here the Attorney General has not shown the lack of substantial evidence to require amendment of the judgment staying punishment for the false imprisonment conviction.
The Attorney General also raises a claim that the conviction for receiving stolen property in case No. INF062462 must be reversed because defendant was also convicted of auto theft and the two charges were based on the same conduct, i.e., stealing a car. (Garcia 1, supra, G042557, p. 4.) Such a dual conviction is prohibited by section 496, subdivision (a), which criminalizes receiving stolen property but provides that "no person may be convicted both pursuant to this section and of the theft of the same property." (People v. Ceja (2010) 49 Cal.4th 1, 5. ["'a thief cannot receive from himself'"].) The theft conviction takes precedence (id. at pp. 3-4) and therefore the receiving stolen property conviction must be reversed and the abstract of judgment amended to reflect that.
DISPOSITION
The conviction for receiving stolen property in case No. INF062462 shall be reversed and the abstract of judgment amended to reflect that. The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.