Opinion
G056350
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LINARES, Defendant and Appellant.
Marilee Marshall for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF1110) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed as amended. Marilee Marshall for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Following the partial reversal of a judgment against defendant Anthony Linares, the trial court resentenced defendant to eight years, eight months in prison. Defendant contends the court failed to recognize it had discretion to strike a firearm enhancement against him pursuant to retroactively-applicable legislation which went into effect a few months before his resentencing hearing, and he asks we remand the case to the trial court so it may exercise its discretion. He also contends the court failed to award him credit for the actual days he spent in custody between the time of the original sentencing and the resentencing. Defendant's first contention is without merit, but we agree the judgment must be amended to account for all actual days in custody. Accordingly, we amend the judgment to reflect credit for 2,188 actual days in custody, and we affirm the judgment as amended.
FACTUAL AND PROCEDURAL BACKGROUND
Stemming from a fight in front of a residence in the City of Santa Ana, defendant was charged with two counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c); all statutory references are to the Penal Coce). The information also alleged he committed the robbery for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)); he personally and vicariously used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); he was out of custody on bail at the time of the robbery (§ 12022.1, subd. (b)); and he had suffered a prior serious and violent "strike" juvenile adjudication (§§ 667, subd. (d), 1170.12, subd. (b)).
A jury found defendant guilty on both robbery counts, and it found true the gang and firearm enhancement allegations. He subsequently admitted the other enhancement allegations, and the trial court sentenced him to 12 years, eight months in prison.
Defendant appealed. This court affirmed, in part, and reversed, in part, the judgment. In an unpublished opinion, we held the court erred in admitting certain case-specific testimonial hearsay through the prosecution's gang expert, in violation of People v. Sanchez (2016) 63 Cal.4th 665. Because the error was prejudicial as to the gang and gang firearm enhancements, we reversed the true findings on those matters and remanded the case to the trial court for further proceedings.
On remand, the People moved to dismiss the gang and gang firearm enhancements. The court granted the motion and subsequently resentenced defendant to a total of eight years, eight months in state prison. It imposed the same sentence it originally imposed for the two robbery counts and one on-bail enhancement, for a total of six years, with the other on-bail enhancement stricken for sentencing purposes. In addition, it imposed one-third of the middle term (a consecutive term of 16 months) for each of the section 12022.5, subdivision (a), firearm enhancements on the robbery counts, amounting to 2.8 years.
DISCUSSION
Defendant identifies two alleged errors in the trial court's resentencing. He claims the court failed to recognize it had discretion to strike the firearm enhancements and failed to give him all the custody credits to which he was entitled. The People concede the judgment should be modified to reflect the additional custody credits, but contend the trial court declined to strike the firearm enhancements even though it knew it had the authority to do so. We agree with the People.
The trial court originally sentenced defendant on February 2, 2015. After this court reversed part of the judgment and remanded the case to the trial court for further proceedings, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section."
The People concede the foregoing amendment applies retroactively to defendant's case, but we need not remand the case for the trial court to exercise its discretion under the amended statute because the court already did. During the resentencing hearing, defendant asked the court to take into consideration certain things before making a decision concerning the remaining gun enhancement. The first he mentioned was the amended subdivision (h) of section 12022.53: "As you know, Senate Bill 620 came into effect this year, and [I] just wanted to know if you can maybe strike that enhancement. There ha[ve] been a lot of changes since the last time."
In response, the court stated it was "taking into consideration these new legal developments" and proceeded to give a lengthy explanation as to why it believed striking the enhancement would be inappropriate under the circumstances: "Here is the thing. . . . You were looking at a lot more exposure than 12.8 [years] when we got to your original sentencing. So I gave you a pretty good reduction at that point. You had a strike. You had all sorts of things going on. . . . You are [now] walking out of this court with a 4-year reduction on your sentence, which is pretty good."
After brief comments from defendant, the court continued: "You also had some aggravating factors in your case. You had the juvenile strike from [2008], and this crime was in 2012. So that is recent. . . . [¶] Factor two, which is really aggravating is the fact that these robberies took place while you were out on bail on another crime. . . . You get arrested on a felony and bail out and pick up another felony. That is bad news. There is no way to justify that. That is a public safety issue."
The record unambiguously demonstrates the court knew it had discretion under the amended statue to strike the firearm enhancement, but it chose not to do so for the reasons it articulated.
As for custody credits, defendant contends the court erroneously failed to account for the time he was in custody between the original sentencing and the post-appeal resentencing. The People agree, as do we, the judgment should be amended to account for all days of actual custody served prior to resentencing—a total of 2,188 days.
DISPOSITION
The judgment is amended to reflect credit for 2,188 actual days in custody. The judgment is affirmed as amended. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.
People v. Linares (Aug. 17, 2107, G051590) [nonpub. opn.]. During the pendency of the present appeal, we granted defendant's unopposed request for judicial notice of the record in the prior appeal.