Opinion
E067607
05-08-2018
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO GARCIA, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIF1604169) OPINION APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Reversed with directions. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea to the court, defendant and appellant, Fernando Garcia, pled guilty to felony vandalism (count 1; Pen. Code, § 594, subd. (b)(1)) and unlawfully challenging a person to fight in public, a misdemeanor (count 2; § 415, cl. (1)). Defendant additionally admitted he personally used a dangerous weapon in his commission of the count 1 offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), suffered two prior prison terms (§ 667.5, subd. (b)), and suffered a prior strike conviction (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court sentenced defendant to an aggregate term of imprisonment of nine years.
All further statutory references are to the Penal Code.
On appeal, defendant contends the court erroneously believed it lacked discretion to strike the personal use of a weapon enhancement. Thus, defendant maintains the judgment must be reversed and remanded for resentencing. We reverse the judgment and remand the matter for resentencing.
I. FACTUAL AND PROCEDURAL HISTORY
On August 23, 2016, defendant was involved in a traffic incident after which he became upset, jumped out of his car, pulled out a knife, and scratched up the other person's car. The People charged defendant by felony complaint with felony vandalism (count 1; § 594, subd. (b)(1)) and unlawfully challenging a person to fight in public, a misdemeanor (count 2; § 415, cl. (1)). The People additionally alleged defendant had personally used a dangerous weapon in his commission of the count 1 offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), suffered two prior prison terms (§ 667.5, subd. (b)), and suffered two prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
On December 8, 2016, defense counsel filed a Romero motion requesting the court to strike both prior strike convictions. On December 13, 2016, the People filed an opposition to the motion. On December 20, 2016, the court granted the Romero motion as to one of defendant's prior strike convictions.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
It is apparent from the record that the court's partial grant of defendant's Romero motion was part of its indicated sentence should defendant agree to plead to the court; defendant's plea agreement reflects the admission of only one of the prior strike convictions. --------
On the same day, defendant entered a plea to the court as recounted above. Defendant's plea agreement reflected that his custody term would be eight years; however, the word "eight" was crossed out at some point and "9" was written in.
At sentencing that same day, the court informed defendant: "So anyway, you can talk it over with your guy, counsel. It's got to be [nine] [years], because I can't dismiss this. It adds one [year]. So you can talk to him and see if that changes his mind." Defense counsel responded that that did not change defendant's mind about entering the plea. The court asked defendant: "You understand that?" Defendant responded: "Yes, sir." The court added: "I have to add that knife; I didn't realize it was there." The court sentenced defendant to nine years of imprisonment.
II. DISCUSSION
Defendant contends the court erroneously believed it lacked discretion to strike the personal use of a weapon enhancement. Thus, defendant maintains the judgment must be reversed and remanded for resentencing. We hold that it is unclear whether the court knew it had discretion to strike the personal use enhancement; thus, we shall reverse and remand for resentencing by the court in full awareness of its discretion whether to strike the personal use enhancement.
"'It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to "strike the additional punishment for that enhancement in the furtherance of justice."' [Citation.]" (People v. Jones (2007) 157 Cal.App.4th 1373, 1378-1379, fn. omitted [court erred in determining it lacked discretion to strike deadly weapon enhancement under § 12022, subd. (b)(1)].) Where the "court operated under the erroneous belief that it lacked discretion to strike the enhancement," we must reverse and remand the matter to permit the court to determine whether to exercise its discretion under section 1385 to strike the enhancement or impose sentence on it. (People v. Meloney (2003) 30 Cal.4th 1145, 1151.)
"Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] '"[A] trial court is presumed to have been aware of and followed the applicable law." [Citations.]' [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.) "[I]t is the appellant's burden to affirmatively demonstrate error. [Citation.]" (People v. Cardenas (2015) 239 Cal.App.4th 220, 227.)
In Jones, with respect to striking the section 12022, subdivision (b)(1) enhancement, the court explicitly stated "it lacked discretion to do so." (People v. Jones, supra, 157 Cal.App.4th at p. 1378.) In People v. Wilson (2002) 95 Cal.App.4th 198, "the trial court expressly stated it believed it had no discretion to strike the sentence enhancement." (Id. at p. 203 [judgment reversed and remanded for court to exercise its discretion whether to strike an enhancement for use of an accelerant attached to an arson offense].) On "an ambiguous record, it is appropriate to remand the matter to the trial court to consider the matter under the correct standard, to the extent it has not already done so." (People v. Lua (2017) 10 Cal.App.5th 1004, 1021.)
Here, the plea agreement reflecting defendant's intended plea to the court appears to reflect that it was anticipated the court would sentence defendant to eight years of imprisonment. However, after defendant entered the plea, the court expressly stated it had to impose a nine-year sentence because it could not dismiss the personal use enhancement. The court later added: "I have to add that knife [enhancement] . . . ."
At best, it is unclear whether the court felt it had to impose the additional year on the enhancement because it had not considered the seriousness of the situation when it initially gave defendant an indicated sentence. On the other hand, the court's use of the phrases "I can't dismiss this" and "I have to add that knife" suggest the court was unaware of its discretion to strike the personal use enhancement. Thus, we shall reverse the judgment and remand the matter for resentencing by the court in full awareness of its discretion whether to strike the personal use enhancement. We express no opinion as to whether the enhancement should be stricken or imposed.
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing in accordance with the views expressed herein.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.