Opinion
E052112
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER PANTOJA, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication i ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF151330)
OPINION
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired Judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Francisco Javier Pantoja raises two sentencing errors concerning the concurrent imposition of a prison prior enhancement (Pen. Code, § 667, subd. (b)) and the imposition of restitution (§ 1202.4, subd. (b)) and parole revocation (§ 1202.45) fines. We reverse his sentence and remand for resentencing.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant pled guilty to: assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1), count 1); willful infliction of traumatic injury on the mother of his child, having been previously convicted of the same offense within seven years, (§ 273.5, subd. (e)(1), count 2); false imprisonment by violence, menace, fraud or deceit (§ 236, count 3); and dissuading a victim from reporting an offense (§ 136.1, subd. (b)(1), count 4). Defendant also admitted he had personally inflicted great bodily injury, under circumstances involving domestic violence, on the victim (§ 12022.7, subd. (e)) in counts 1 and 2, and he had two prior convictions, each of which constituted a prison prior (§ 667.5, subd. (b)).
The trial court established a factual basis for the plea by questioning defendant. On June 24, 2009, defendant assaulted the mother of his child. Defendant's assault was with fists to the head and face of the victim, bruising her and breaking her nose. With force independent of the assault, defendant detained the victim. He also attempted to dissuade the victim from reporting him to law enforcement officials.
The trial court commenced the sentencing hearing by reviewing the facts with the parties and discussing the applicability of section 654's prohibition against multiple punishment for the same act. While stating its tentative decision, the trial court stated "I'm going to run the two prison priors concurrent. One of them is a conduct like this. So I end up with a sentence of eight plus two plus one are 11."
After additional discussion with counsel, the trial court set the count 2 infliction of traumatic injury conviction (§ 273.5, subd. (e)(1)) as the principal term, imposed the midterm of four years, and added four years for the midterm of the great bodily injury enhancement (§ 12022.7, subd. (e)). For the count 1 assault conviction (§ 245, subd. (a)(1)), the trial court imposed the upper term of four years, but stayed it pursuant to section 654. The trial court did not "impose additional enhancements under [section] 12022.7 as to the [section] 245[, subdivision] (a)(1)." The sentencing minute order states "Court orders Enhancement(s) GD in Count 01 Stricken," but states no reasons for striking the enhancement. Defendant was "sentenced to four years on the [Count 3 false imprisonment (§ 236)]. That's also midterm. And that is stayed pursuant to section 654." However, the midterm sentence for false imprisonment is actually two years (§§ 18 & 237), which is reflected in the sentencing minute order. For the count 4 dissuading a victim conviction (§ 136.1, subd. (b)(1)), the trial court imposed a consecutive midterm of two years (§ 1170.15). "And as to the two prison priors, they are to run concurrent with each other and consecutive to the [principal] term and the secondary term, making the total commitment 11 years." The trial court set the parole revocation restitution fine (§ 1202.45) at $1,000 and stayed it. The trial court did not impose a restitution fine (§ 1202.4, subd. (b)) or state a compelling and extraordinary reason or reasons for not imposing the fine. However, the sentencing minute order states "Pay restitution fine in the amount of $5000.00 pursuant to 4B-1202.4(B) PC," and "Pay additional Parole Revocation restitution fine in the amount of $5000.00 pursuant to 45B-1202.45(B) PC fine is suspended unless parole is revoked."
DISCUSSION
The parties correctly agree that the trial court erred by imposing the prison prior enhancements concurrently. (§ 667.5, subd. (b) ["in addition and consecutive to any other prison terms"].) Both parties also contend the trial court intended an 11-year sentence and suggest we modify the judgment to strike the concurrent enhancement rather than remanding the case. While this may be efficient, it would be in disregard of section 1385, which requires a written statement of reasons be entered into the minutes. " 'The statement of reasons is not merely directory, and neither trial nor appellate courts have authority to disregard the requirement. It is not enough that on review the reporter's transcript may show the trial court's motivation; the minutes must reflect the reason "so that all may know why this great power was exercised." ' [Citations.]" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) "The underlying purpose of this statutory requirement is 'to protect the public interest against improper or corrupt [fn. omitted] dismissals' and to impose a purposeful restraint upon the exercise of judicial power ' "lest magistral discretion sweep away the government of laws." ' [Citations.]" (People v. Orin (1975) 13 Cal.3d 937, 944.) Furthermore, striking one of the prison priors, or its punishment, is not the only way in which the trial court could have reached an 11- year sentence. Accordingly, we shall reverse defendant's sentence and remand the matter so that the trial court may exercise its informed discretion.
The section 1202.45 parole revocation restitution fine is required to be set equal to the section 1202.4, subdivision (b), restitution fine. (§ 1202.45.) A restitution fine of between $200 and $10,000 is mandatory unless the trial court states compelling and extraordinary reasons for not imposing one. (§ 1202.4, subd. (c).) The Legislature has provided a formula by which a trial court may calculate the restitution fine; $200 multiplied by the number of years a defendant is ordered imprisoned multiplied by the number of felony counts a defendant has been convicted of. (§ 1202.4, subd. (b)(2).) Because we are reversing defendant's sentence we do not address the parties contentions as to how to interpret and correct the trial court's errors with regards to the imposition of these related fines.
DISPOSITION
The judgment is reversed as to the sentence, and the superior court is directed to resentence defendant. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.