Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court Nos. SCD179752; SCD201910 of San Diego County, Jeffrey F. Fraser, Judge.
McDONALD, J.
This appeal challenges the sentence imposed on defendant Bernardo Lopez after he unsuccessfully moved to withdraw his guilty plea. The court sentenced Lopez to a total term of 24 years 8 months, and imposed a $1000 probation revocation fine and an additional $1000 restitution fine.
Lopez contends, and the People concede, the trial court erroneously imposed the $1000 restitution fine. Lopez also contends, and the People concede, the abstract of judgment incorrectly reflects his accrued custody credits. Lopez further contends that because the trial court erroneously believed it did not have discretion to impose concurrent sentences in connection with Lopez's kidnapping convictions, and instead believed it was required to impose consecutive terms for those offenses, the matter should be remanded for resentencing. The People agree the court misapprehended the latitude available to it when it sentenced Lopez, but contend resentencing is inappropriate because Lopez waived the error and because any error was harmless.
THE SENTENCING HEARING
In case No. SCD201910 (the kidnapping case), Lopez pleaded guilty to two counts of kidnapping, two counts of burglary, one count of false imprisonment and one count of vehicle theft, and admitted the firearm enhancements appended to each of those counts. He admitted he hired five men to kidnap two victims because Lopez's brother had been kidnapped and was being held for ransom. Lopez admitted he was personally armed with a firearm during the kidnapping, he falsely imprisoned a third victim, he aided and abetted the theft of two cars, and he aided and abetted a residential burglary.
Lopez's sentence also included imposition of a consecutive eight-month term for a prior case (case No. SCD179752, the drug case) in which Lopez pleaded guilty to possession of a controlled substance for sale, was granted probation, and then violated the terms of probation by committing the new offenses.
At the sentencing hearing, the probation report recommended a total term of 30 years 8 months for the kidnapping case, and an additional eight months for Lopez's violation of the probation granted in the drug case. After his motion to withdraw his guilty plea in the kidnapping case was denied, Lopez argued the court should "deviate from [the 30 year 8 month] recommendation" for the kidnapping case based on the facts of the case, and asked the court to impose a sentence on the "lower end" by imposing a term of 13 years on one of the kidnapping counts, and then "stay[ing] all other aspects of the sentence, " including the term for the second kidnapping count. In reply, the court stated "[t]he problem is under [Penal Code section] 1170.1[, ] it requires that the second kidnapping be consecutive statutorily." The defense then argued that if the court were to impose the term consecutively, the court should "go on the lower end of all that... if we do one-third of all that, I believe it would be." The court then replied, "the code... says full strength." The defense then asserted, because this was not a situation involving an "arbitrary victim [and instead involved] self-help[, ] I ask the court to sentence [Lopez] to the lowest possible term."
The prosecutor argued the crimes were serious and an appropriate term was 27 years 8 months, based on an upper term for the first kidnapping count and a consecutive term for the second kidnapping count. The court, after noting the crimes were serious and that Lopez was the apparent ringleader who engaged in self-help, elected to impose the midterm for each of the kidnapping counts, along with the appended terms for the weapons enhancements, and imposed them consecutively for a total term of 24 years in the kidnapping case.
ANALYSIS
Lopez argues, and the People concede, the trial court's belief-that it was statutorily required to impose consecutive terms on Lopez's two kidnapping convictions and did not have discretion to impose concurrent sentences for those convictions-was erroneous. (See People v. Bryant (1992) 10 Cal.App.4th 1584, 1603.) Lopez correctly asserts that a defendant is "entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court... [citations] [and a] court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) The courts have implemented that entitlement by concluding, when it "is unclear from the record before us why the court imposed the sentence that it did, and it is... possible to conclude that the court erroneously believed that it was required to impose the maximum possible term of commitment [such that] we cannot be reasonably assured that the trial court in fact exercised its discretion" (People v. Austin (1981) 30 Cal.3d 155, 160-161), a court may reverse the sentence and remand it to the trial court for resentencing. (Ibid.; accord, People v. Meloney (2003) 30 Cal.4th 1145, 1151 [where record showed "court operated under the erroneous belief that it lacked discretion to strike the enhancement, we shall reverse the Court of Appeal's judgment affirming the... imposition of the enhancement, and remand the matter to the Court of Appeal with directions to remand the case to the [superior] court to permit that court to determine whether to exercise its discretion under [Penal Code] section 1385 to strike the enhancement or instead impose the enhancement"]'.)
The People raise two arguments to support their contention that remand for resentencing is improper. First, the People assert Lopez's failure to point out at trial that consecutive sentencing was not mandatory forfeits any claim of error. Although some sentencing defects will be forfeited if not raised at trial (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 353-354 [claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices raised for the first time on appeal are not subject to review]), we are unaware of any authority suggesting this forfeiture rule applies when a defendant has in fact requested a lenient sentence and the trial court erroneously believes it does not have the discretion to follow the defendant's suggestion. (Cf. People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248; People v. Sherrick (1993)19 Cal.App.4th 657, 659.)
The People alternatively argue that remand is unnecessary because there is no reasonable probability Lopez would have received a more favorable sentence had the court been cognizant of its options. The People cite no law holding the harmless error analysis of People v. Watson (1956) 46 Cal.2d 818 is appropriate in cases in which the record affirmatively reveals that the trial court's sentencing choices were not the product of its "informed discretion." (Compare People v. Sherrick, supra, 19 Cal.App.4th at p. 661 ["[w]e cannot 'save' the judgment on a harmless error analysis [because] [w]hile the offenses were undoubtedly serious, the trial court's comments unquestionably demonstrate that it was laboring under a false impression" as to its sentencing options] with People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685-1688.) However, even assuming the Watson standard is applicable, we are reluctant to speculate on how the trial court would have ruled had it been aware of its sentencing options, particularly when the trial court in fact declined the prosecutor's suggestion that the harshest available sentence be imposed.
We conclude the appropriate remedy is to reverse the matter and remand this case to the trial court to permit it to exercise its informed discretion in selecting the appropriate sentence. Additionally, the trial court on remand shall not impose a restitution fine in case No. SCD179752 beyond that originally imposed in that case and shall correctly record Lopez's custody credits in the abstract of judgment.
DISPOSITION
The judgment is reversed and remanded for resentencing.
WE CONCUR: HALLER, Acting P. J., AARON, J.