Opinion
F080783
05-25-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVID HANS MORALES, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F16905584)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appointed counsel for defendant David Hans Morales asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of the right to file a supplemental brief, and he filed a response that raised no issues. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.
DISCUSSION
On four separate occasions at different business establishments, defendant entered the store, lifted his shirt to display the firearm in his waistband and demanded the money in the cash register, with success on three of the four occasions. Defendant was subsequently arrested, tried by jury and convicted of four counts of robbery in the second degree (Pen. Code, § 211; counts 1-4) and one count of attempted robbery in the second degree (§§ 664/211; count 5). In a bifurcated proceeding, the jury also found that defendant had two prior serious or violent felony convictions within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
We take judicial notice of our prior opinion in People v. Morales (Aug. 12, 2019, F076273) [nonpub. opn.]). (Evid. Code, §§ 452, subd. (d), 459.) However, we need not further summarize the facts underlying defendant's convictions, as they are not relevant to this appeal, which follows a limited remand to allow the trial court to consider whether to exercise discretion to strike the prior serious felony conviction enhancements in light of Senate Bill No. 1393. (Stats. 2018, ch. 1013, §§ 1, 2, pp. 1-6 (Senate Bill No. 1393).
All further statutory references are to the Penal Code. --------
The trial court sentenced defendant to an aggregate term of 140 years to life in prison, as follows. On each of counts 1, 3, 4 and 5, the court imposed a term of 25 years to life pursuant to the Three Strikes law, plus two additional five-year terms for the prior serious felony conviction enhancements. (§ 667, subd. (a)(1).) On count 2, the court exercised its discretion pursuant to People v. Garcia (1999) 20 Cal.4th 490, 503-504 to strike the prior felony conviction allegations and it imposed the upper term of five years, plus an additional 10 years for the two prior serious felony conviction enhancements, to run concurrently with the term on count 1.
In his prior appeal, defendant claimed that as to counts 2 and 5, the trial court erred in refusing his request to instruct the jury on theft, and erred in failing to instruct the jury sua sponte on theft and attempted theft as lesser included offenses of robbery and attempted robbery. In supplemental briefing, defendant requested remand to allow the trial court to exercise its discretion whether to strike the prior serious felony conviction enhancements in light of Senate Bill No. 1393, effective January 1, 2019. The People conceded remand was appropriate under Senate Bill No. 1393, but otherwise disputed defendant's claims for relief.
We remanded the matter to allow the trial court to exercise its discretion in the first instance with respect to whether to strike the prior serious felony conviction enhancements under section 667, subdivision (a)(1), but otherwise affirmed the judgment.
Following remand, the trial court resentenced defendant on January 16, 2020. The court considered defendant's aggregate sentence and stated that had it had the discretion at the time of the sentencing in 2017 under section 1385, it would have stricken the prior serious felony conviction enhancements. The court then elected to exercise discretion to strike the two five-year enhancements in the interest of justice, thereby reducing defendant's aggregate sentence by 40 years. (§ 1385, subd. (a).) The court again imposed four terms of 25 years to life on counts 1, 3, 4, and 5, and the upper term of five years on count 2, to run concurrently with the term on count 1, for a total term of 100 years to life in prison. The court also again imposed, without objection, a restitution fine of $10,000 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $10,000 under section 1202.45, subdivision (a), suspended; a court operations assessment of $200 under section 1465.8; and a total court facilities assessment of $150 under Government Code section 70373.
Defendant filed a timely notice of appeal.
Following an independent review of the record, we observe that the abstract of judgment incorrectly reflects imposition of a total court operations assessment of $240 under section 1465.8, which we shall order corrected on our own motion. (People v. Jones (2012) 54 Cal.4th 1, 89.) We otherwise find no reasonably arguable factual or legal issues, and we affirm the judgment.
DISPOSITION
The trial court shall issue an amended abstract of judgment reflecting imposition of a total court operations assessment of $200 under section 1465.8. The judgment is otherwise affirmed.