Opinion
A147978
01-19-2017
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL GONZALEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC050585)
Appellant Miguel Gonzalez appeals from a state prison sentence imposed when he was resentenced by the San Mateo County Superior Court after the court was advised by the California Department of Corrections and Rehabilitation (CDCR) that the sentence originally imposed on appellant was unlawful. The appeal is authorized by Penal Code section 1237.
All statutory references are to the Penal Code.
Appellant's court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant was advised by counsel of his right to file a supplemental brief but has not done so.
FACTS AND PROCEEDINGS BELOW
On October 3, 2002, a jury convicted appellant of 18 felony counts alleging infliction of corporal injury of a spouse (§ 273.5, subd. (a)), dissuasion of a witness or victim by force or threat (§ 136.1, subd. (c)(1)), assault with a deadly weapon other than a firearm likely to produce great bodily injury (§ 245, subd. (a)(1), criminal threats (§ 422), rape of spouse by force or fear (§ 262, subd. (a)(1)), assault with force likely to produce great bodily injury (§ 254, subd. (a)(1)), sexual penetration with a foreign object with force (§ 289, subd. (a)(1), and oral copulation by force or fear (§ 288a, subd. (c)(2)). It was also alleged that most of the charged offenses were serious felonies involving use of a dangerous weapon. (§§ 1192.7, subd. (c)(23.)
After finding out that his wife was involved with another man, appellant punched and kicked her numerous times, pulled her hair, cut her repeatedly with a knife, and raped her over a three-day period, some of which conduct was committed in the presence of appellant's and his victim's three children. The victim suffered a laceration of her lip, multiple bruises to her body, two black eyes and loss of hearing. Large amounts of her hair were pulled out of her scalp, she was forcible raped and her vaginal area was physically mutilated.
Appellant was in 2002 convicted and sentenced to 61 years to life and the judgement was affirmed by this court.
In 2015, CDCR returned the case to the San Mateo County Superior Court for correction of a technical error in the sentence. With respect to count 2 (dissuasion of a witness or victim by force or threat with the use of a deadly weapon in violation of (§ 136.1, subd. (c)(1)), the sentencing Judge, the Honorable H. James Ellis, sentenced appellant to one-third the midterm (1 year) consecutive. According to CDCR, pursuant to section 1170.15, "if a person commits a felony and an additional felony of PC 136.1 . . . committed against a victim or witness of the first felony then the subordinate term for each consecutive offense shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed." In other words, because the middle term for violation of section 136.1 is not one but three years, appellant should have been sentenced to 63 years to life, not 61 years to life.
As Judge Ellis was no longer then a member of the San Mateo County Superior Court, the matter was heard on March 25, by the Honorable Jonathan Karesh.
Appellant acknowledged that the sentence imposed by Judge Ellis was unauthorized and, relying on People v. Burbine (2003) 106 Cal.App.4th 1250, 1257-1259 ("upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed, including the term imposed as the principal term"), and numerous other cases, took the position that when part of a sentence is unauthorized, the whole sentence is illegal and must be set aside and a complete resentencing must be conducted at which the court must reconsider all of its sentencing choices. Judge Karesh agreed and ordered a new psychological evaluation of appellant and a new probation report. The People did not disagree that a new resentencing was required but maintained that appellant should be re-sentenced to the originally imposed term of 61 years to life, which it thought should be accomplished by running counts 6 and 11 (both of which alleged violations of section 245, subd. (a)) concurrent to the other counts and imposing the lawful sentence on count 2.
The psychological evaluation, which was apparently conducted by Dr. Corby, is not in the appellate record but was referred to by Judge Karesh at the resentencing hearing.
At the hearing, after allowing counsel to argue the positions of the parties at considerable length, Judge Karesh noted that "[t]he court has spent a considerable amount of time on this case, and I've thought about it a lot, and I carefully read the transcript and considered lots of different factors, and I do believe that I am entitled to do a complete resentencing, and I could essentially give the defendant whatever term that I wanted. [¶] What struck me the most about reading the transcript and looking at the photos of [the victim] was that of all the crimes that I've ever seen in my decades of being a lawyer and a Judge, this is one of the worst by far. It was just horrific. It was evil. As Judge Ellis said, it was savage. It did not just happen—there wasn't just one rape. There was a series of rapes over a couple of days, which this court believes there—that a full-term consecutive is mandatory for the rapes." Adding that he also felt it significant that the victim testified "that her husband told her when he was on his way to work that if she were to put him in jail that he would come back and kill her, and I have a serious concern that that would happen if this defendant were released at whatever age." The court also expressed its horror at the additionally aggravating factors that appellant "tried to mutilate part of . . . the victim's private area, which I've never seen before," that she was "particularly vulnerable," that appellant "used a weapon during part of the crimes," and that many of the offenses were committed "in front of the victim's child."
In the end, by imposing the upper term of three years consecutive on count 2 (with respect to which Judge Ellis had imposed the unlawful term of one year), and imposing concurrent rather than consecutive sentences on counts 5, 12, and 19 (all of which were criminal threats in violation of section 422), Judge Karesh imposed the same 61 years to life term that had been somewhat differently imposed by Judge Ellis.
DISCUSSION
The sentence imposed by Judge Karesh is not unlawful. The only question is whether, taking the circumstances into consideration, the length of the sentence constitutes an abuse of discretion.
It is a generally accepted principle of appellate review in criminal cases that where a sentencing determination is committed to the discretion of the sentencing judge, his or her determination will rarely be disturbed. As has been said, "the showing on appeal is wholly insufficient if it presents a state of facts, a consideration of which, for the purpose of judicial action, merely afforded an opportunity for a difference of opinion. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618.)
The sentence imposed by Judge Karesh cannot be deemed an abuse of discretion. Among other things, the judgment entered by Judge Ellis, which includes the sentence, was appealed to and affirmed by this court in an unpublished opinion dated September 20, 2004. (People v. Gonzalez (Sept. 20, 2004, A101281).) Since the length of the sentence imposed by Judge Karesh is identical to that imposed by Judge Ellis and was not previously shown to constitute an abuse of discretion, it cannot now be considered a "manifest miscarriage of justice."
In his prior appeal, appellant raised two sentencing related issues: that the trial court improperly sentenced him under both the mandatory and discretionary sentencing provisions of section 667.6, subdivisions (c) and (d), and that it violated section 654 when it imposed sentences on count 4 for assault with a deadly weapon and count 5 for making a criminal threat. Both of these contentions were rejected. (People v. Gonzalez, supra, A101281, at p. 4.)
The trial court properly rejected defense counsel's contention that appellant's exemplary postconviction conduct in prison warranted a shorter sentence than Judge Ellis imposed. As the district attorney pointed out, that is a matter for the Board of Parole Hearings to consider at a parole hearing. Postconviction conduct does not ordinarily come into play at a sentencing hearing because it ordinarily does not exist. It is present in this case only because this is a belated re-sentencing. As it is unrelated to the gravity of the commitment offense, which must remain the critical factor in sentencing, postconviction behavior cannot properly be taken into account in sentencing.
Moreover, appellant's institutional behavior was not "exemplary." The probation officer's report stated that "[w]hile in prison, the defendant has participated in faith groups, adult basic education for two years, House of Healing group counseling in 2011, and mental health services," but also noted he was "found guilty of battery on an inmate" in 2004, "found guilty of failing to comply" in 2008, "found guilty of possession of a contraband" in 2009, and "failed to show for a medical visit" in 2014. --------
Appellant was at all times during the resentencing process represented by competent counsel who protected his rights and interests, and the sentence imposed is lawful.
Having reviewed the entire record pertinent to the resentencing, which is the only matter before us, and found no arguable issue that requires briefing, the judgment below, which embodies the new sentence, is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.