Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF151785 Joseph A. Kalashian, Judge.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Three times in one day, Norteño gang member David Hernandez fired a gun at two Sureño gang members or associates to settle a score with a Sureño who once shot at him. A jury found him guilty of assault with a firearm, criminal threats, and shooting at an occupied vehicle for the benefit of, at the direction of, or in association with a criminal street gang. On his first appeal, he argued two discovery issues, an insufficiency of the evidence issue, and a sentencing issue. We remanded for resentencing on the shooting at an occupied vehicle but otherwise affirmed the judgment. (People v. Hernandez (Dec. 11, 2009, F055972 [nonpub. opn.].) On appeal from the judgment after resentencing, he now argues a sentencing issue, a custody-credits-recalculation issue, and an abstract-of-judgment issue. We order recalculation of his custody credits and correction of errors in the abstract of judgment but otherwise affirm the judgment.
On August 2, 2010, Hernandez requested that we take judicial notice of our file in F055972. On August 5, 2010, we granted his request. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
BACKGROUND
On November 4, 2005, the district attorney filed an information charging Hernandez with six counts of attempted willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a), 664, subd. (a); counts 1, 3, 5, 7, 10, and 11), six counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 4, 6, 8, 12, and 13), two counts of criminal threats (§ 422; counts 14 and 15), and one count of shooting at an occupied vehicle (§ 246; count 9). Additionally, the information alleged he committed each offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subds. (b)(1)(B), (b)(1)(C), (b)(4)(B), (b)(5)), personally and intentionally discharged a firearm in the commission of each attempted willful, deliberate, and premeditated murder (§ 12022.53, subd. (c)), and personally used a firearm in the commission of each offense other than shooting at an occupied vehicle (§ 12022.5, subd. (a)).
Later statutory references are to the Penal Code except where otherwise noted.
On July 2, 2008, a jury found Hernandez guilty of all six counts of assault with a firearm, both counts of criminal threats, and shooting at an occupied vehicle, found all of the special allegations associated with those counts true, and found him not guilty of all six counts of attempted willful, deliberate, and premeditated murder.
On July 31, 2008, the court imposed an aggregate sentence of an indeterminate 15-to-life term consecutive to a determinate 12-year term. The aggregate sentence consisted of a 15-to-life indeterminate term on the count 9 shooting at an occupied vehicle (§§ 246, 186.22, subd. (b)(4)(B)), consecutive to a 12-year term on the count 2 assault with a firearm (the three-year midterm plus the five-year term for the gang enhancement plus the four-year midterm enhancement for personal use of a firearm) (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)), concurrent with identical sentences on the counts 4, 6, and 8 assaults with a firearm (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)), concurrent with stayed identical sentences on the counts 12 and 13 assaults with a firearm (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 654, 12022.5, subd. (a)), concurrent with two-year terms on the counts 14 and 15 criminal threats (§§ 420, 186.22, subd. (b)(1)(B), 12022.5, subd. (a)).
On March 16, 2010, the court (at the resentencing hearing on remand) ordered the 12-year term on the count 2 assault with a firearm (the three-year midterm plus the five-year term for the gang enhancement plus the four-year midterm enhancement for personal use of a firearm) (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)) to run concurrent with, not consecutive to, the 15-to-life indeterminate term on the count 9 shooting at an occupied vehicle (§§ 246, 186.22, subd. (b)(4)(B)).
ISSUES ON APPEAL
Hernandez argues (1) the court’s denial of his request at the resentencing hearing on remand to strike the criminal street gang enhancement from the count 9 shooting at an occupied vehicle requires a remand for the exercise of the court’s discretion, (2) the court’s failure to calculate his actual custody credits from the date of his arrest to the date of his resentencing requires a remand for correction, and (3) several clerical errors in the amended abstract of judgment require a remand for correction.
DISCUSSION
1. Criminal Street Gang Enhancement
Hernandez argues that the court’s denial of his request at the resentencing hearing on remand to strike the criminal street gang enhancement from the count 9 shooting at an occupied vehicle requires a remand for the exercise of the court’s discretion. The Attorney General argues the contrary.
On Hernandez’s first appeal, we granted the following relief: “Hernandez argues, the Attorney General agrees, and we concur that a remand for resentencing is necessary solely on the shooting at an occupied vehicle since the record shows the court’s lack of understanding of the discretion to impose a concurrent sentence. During imposition of an aggregate 12-year determinate term consecutive to a 15-to-life indeterminate term on the count 9 shooting at an occupied vehicle, the court stated that if the latter term could ‘be run concurrent, I’d allow it to be run concurrent, but I don’t think it can.’ The law is to the contrary. (See, e.g., People v. Alvarado (2001) 87 Cal.App.4th 178, 195, fn. 5; §§ 669, 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5), 4.425.)” (People v. Hernandez (Dec. 11, 2009, F055972 [nonpub. opn.].)
On remand, the court continued Hernandez’s resentencing from the morning calendar to the afternoon calendar so as to read his letter of February 28, 2010 – which asked the court to strike the criminal street gang enhancement from count 9 – before ruling. At the continued hearing, the court denied his request. His attorney then summarized his understanding of how our opinion “resolved” the sentencing question by stating, “The law does give this Court discretion to do what it intended to do, that is sentence him concurrently. So I’m asking the Court to do that now, ” to which the court responded, “And I am. So I’m resentencing him now to the – so that the 12-year sentence runs concurrent to the 15 to life sentence.” The prosecutor inquired, “That would be the time on Count 2 that’s concurrent to the time imposed on Count 9, just so the record’s clear.” The court replied, “Correct.” That the court and counsel alike understood the scope of our remand is clear from the record.
On his second appeal, Hernandez now argues that the court committed an abuse of discretion at the resentencing hearing on remand by not granting the request in his letter for the court to “reconsider the question of striking the gang enhancement so that [he] could receive a determinate sentence, rather than a 15-years-to-life indeterminate term, ” on the shooting at an occupied vehicle count due to his “good behavior in prison, the negative impact of the imposed indeterminate 15 years to life sentence upon [his] children and other family members, and [his] strong desire for an opportunity to be paroled so that he could pursue a law-abiding life and provide his children with guidance to assist them in making better decisions and to avoid duplicating his mistake of engaging in criminal conduct.” The court replied, “That request is denied. It’s here solely on the issue of the determinate sentence and the 15 to life indeterminate sentence.” The prosecutor noted that Hernandez made “the same request” at “the original sentencing” and that the court, after a thorough discussion on the record, denied his request. The court commented, “Correct.”
The reporter’s transcript of the original sentencing hearing confirms the court’s and the prosecutor’s recollections. Acknowledging that the imposition of the 15-to-life criminal street gang enhancement was “a severe sentence, ” the court characterized as the sole reason for doing so, “I can’t in good conscience strike or stay that gang allegation, because I do believe that Count 9 was done in that fashion.” Hernandez asked, “There’s no way, like, you imposing the life, is there any way –, ” which the court corrected to, “15 years to life?, ” which Hernandez incorporated into a continuation of his question, “You would be able to add ten years onto the 15 instead of the life?” The court replied, “No. I could stay the gang allegation, which would mean it wouldn’t be a life sentence. I said I’m not going to do that in this case. I know that’s a severe punishment, but based on what happened, I can’t do that.”
Hernandez reads the record of the resentencing hearing as establishing that the court “affirmatively stated on the record” the “incorrect belief that it lacked discretion to reconsider the imposed sentence on remand.” Our reading of both records together — the original sentencing hearing and the resentencing hearing — differs. At the original sentencing hearing, the court candidly observed that a 15-to-life criminal street gang enhancement was “a severe sentence” but articulated “good conscience” as “the reason” for not striking or staying the sentence and denied relief on the basis of “what happened.” (Italics added.) At the resentencing hearing, the court granted a continuance to read the request for relief in Hernandez’s letter before ruling. The prosecutor recalled the court’s denial of “the same request” at the original sentencing hearing. “Correct, ” the court observed.
“When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices.” (People v. Hill (1986) 185 Cal.App.3d 831, 834, italics added.) The court is not, however, obligated to do so. Hernandez cites no authority to the contrary. Read together, the records of his original sentencing hearing and his resentencing hearing show the court understood the scope of its sentencing discretion on remand. Only after ordering a continuance to allow time to read Hernandez’s letter did the court deny his request for relief and make an informed exercise of discretion not to reconsider its original sentence choice of the imposition of the criminal street gang enhancement. On that record, a remand for the court to consider its original sentence choice yet again “would be merely a redundant exercise.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1211.) “The law neither does nor requires idle acts.” (Civ. Code, § 3532.)
2. Custody Credits Calculation
Hernandez argues, the Attorney General agrees, and we concur that the court’s failure to calculate his actual custody credits from the date of his arrest to the date of his resentencing requires a remand for correction. The amended abstract of judgment shows the same number of actual custody credits for that period as did the original abstract of judgment. “When, as here, an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the ‘subsequent sentence.’ (§ 2900.1.)” (People v. Buckhalter (2001) 26 Cal.4th 20, 23, italics in original.)
3. Abstract of Judgment
Hernandez argues, the Attorney General agrees, and we concur that five clerical errors in the amended abstract of judgment require a remand for correction. The details follow.
First, the amended abstract of judgment shows a 12-year term on the count 2 assault with a firearm (the three-year midterm plus the five-year term for the gang enhancement plus the four-year midterm enhancement for personal use of a firearm) (§§ 245, subd. (a)(2), 186.22, subd. (b)(1)(B), 12022.5, subd. (a)) consecutive to a 15-to-life indeterminate term on the count 9 shooting at an occupied vehicle (§§ 246, 186.22, subd. (b)(4)(B)). The court, however, imposed the former term concurrent with the latter term.
Second, the amended abstract of judgment shows a determinate 15-year criminal street gang enhancement (listed only as “PC 186.22(b)”) consecutive to an indeterminate 15-to-life term on the count 9 shooting at an occupied vehicle. The criminal street gang enhancement at issue, however, is not a determinate enhancement but an indeterminate enhancement of “an indeterminate term of life imprisonment with a minimum term of ” “[i]mprisonment in the state prison for 15 years, if the felony is … a felony violation of Section 246” for shooting at an occupied vehicle (§§ 246, 186.22, subds. (b)(4), (b)(4)(B)). The court imposed the enhancement authorized by statute. The abstract of judgment shows an enhancement that does not exist.
Third, the amended abstract of judgment shows concurrent and stayed nine-year terms on the counts 12 and 13 assaults with a firearm. (§§ 245, subd. (a)(2), 654.) The court, however, imposed and stayed both of those terms. Neither is concurrent.
Fourth, the amended abstract of judgment shows the assault with a firearm in count 2 as a section 245, subdivision (a)(2) violation but the assaults with a firearm in counts 4, 6, 8, 12, and 13 as section 245, subdivision (a) violations. All six counts are section 245, subdivision (a)(2) violations.
Fifth, the amended abstract of judgment shows counts 13 and 14 as section 422 criminal threats violations. Counts 14 and 15, however, are the section 422 criminal threats violations. Count 13 is a section 245, subdivision (a)(2) assault with a firearm violation.
DISPOSITION
The case is remanded for recalculation of Hernandez’s custody credits and for correction of errors in the abstract of judgment consistent with our opinion. Otherwise the judgment is affirmed. Hernandez has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.)
WE CONCUR: Cornell, A.P.J., Dawson, J.