Opinion
D074169
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. TITO PEREZ, SR., Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1003269) APPEAL from a judgment of the Superior Court of San Bernardino, R. Glenn Yabuno, Judge. Reversed and remanded with directions. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal we have considered in this case. The current appeal is from the resentencing which occurred when we remanded the case to the superior court. Perez claims, and the People agree that the trial court erred by imposing a second strike sentence on remand as there was no valid strike prior remaining at the time of resentencing. The parties also agree the court imposed an unauthorized sentence by imposing a 10-year enhancement under Penal Code section 186.22, subdivision (b), where the statute only permits the court to impose a five-year enhancement. Our review of the record indicates the parties are correct about the claimed sentencing errors. We will vacate the sentence and remand the case to the trial court with directions to resentence without the alleged strike prior and to impose no greater term than five years for the section 186.22, subdivision (b) enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
PROCEDURAL BACKGROUND
Perez was charged with two counts of dissuading a witness (§ 136.1, subd. (b)(1); counts 1, 2), two counts of making criminal threats (§ 422; counts 3, 4), two counts of attempted extortion (§ 664, 520; counts 5, 6), and one count of street terrorism (§ 186.22, subd. (a); count 7). It was alleged that the crimes committed in counts 1 through 6 were for the benefit of a criminal street gang (§ 186.22, subd. (a)). The information also alleged two strike prior convictions (§ 667, subds. (b)-(i)) based upon a 2000 conviction for battery with serious bodily injury and a 2007 conviction for criminal threats. The information also alleged a serious felony prior conviction (§ 667, subd. (a)(1)).
Prior to trial, the prosecution informed the court that the 2007 conviction was not for criminal threats but was for second degree burglary. The jury convicted Perez of all counts and found the street gang enhancement to be true. The court found the strike prior based upon the 2000 conviction for battery with serious bodily injury to be true.
The court vacated the conviction for count 7. Perez was sentenced to a term of 28 years four months in prison. Perez appealed.
On January 31, 2018, this court issued its nonpublished opinion in People v. Perez (D073001). We reversed the convictions for counts 3 through 6 for instructional error. We also reversed the true finding on the 2000 strike prior. We remanded the case to the trial court.
On remand the prosecutor dismissed counts 3 through 6. No effort was made to retry the strike prior. There was substantial confusion at the resentencing hearing. In part based on a sentence in our opinion and the trial court's erroneous recollection, the court believed there had been a true finding on a strike prior based on the alleged criminal threats conviction from 2007, which the record demonstrates was not correct. The court then proceeded to sentence Perez as a second strike offender.
In addition, Perez brought to the court's attention that the 10-year gang enhancement did not apply to convictions for dissuading a witness without violence. The court imposed the 10-year term over objection for a total term of 20 years eight months.
Perez contends, and the People agree, the court erred in imposing a second strike sentence on this record and that the maximum gang enhancement which could be imposed is five years. The record supports the position taken by both parties and we will remand for resentencing.
DISCUSSION
I
SECOND STRIKE SENTENCE
As we have discussed, on remand the court imposed a second strike sentence on counts 1 and 2. The sentence was imposed based upon the court's mistaken belief there had been a true finding on a strike prior from a 2007 conviction for criminal threats. The record clearly reflects there was no conviction for that offense.
Perez had been charged with criminal threats in 2007 but pleaded guilty to second degree burglary as a misdemeanor. The only adjudicated strike prior arose from a 2000 conviction for battery with serious bodily injury. However, our prior opinion reversed the true finding for that prior and it was not retried on remand. Thus, there was no valid strike prior to support the court's second strike sentence on counts 1 and 2.
II
THE GANG ENHANCEMENT
The convictions for counts 1 and 2 were for dissuading a witness under section 136.1, subdivision (b)(1). The verdict returned by the jury was for that statutory violation.
On remand Perez argued the gang enhancement statute only provided for a five-year term where the violation of section 136.1 is under subdivision (b)(1). That offense does not require violence and is not a violent felony within the meaning of section 667.5, subdivision (c)(20). Unfortunately, the trial court disagreed and imposed a 10-year term.
Section 186.22, subdivision (b)(1) imposes an additional term of imprisonment when a defendant is convicted of a felony and the jury finds the crime was committed for the benefit of a criminal street gang. It states:
"(b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows:
"(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion.
"(B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years.
"(C) If the felony is a violent felony, as defined in subdivision (c) of Section 667 .5, the person shall be punished by an additional term of 10 years." (Italics added.)
It is clear that section 186.22, subdivision (b)(1)(C), which provides for a 10-year term, does not apply where the defendant is convicted of dissuading a witness without violence under section 136.1, subdivision (b)(1). (See People v. Lopez (2012) 208 Cal.App.4th 1049, 1064.) Accordingly, we must again remand the case to permit the trial court to impose a lawful sentence.
DISPOSITION
The sentence imposed for counts 1 and 2 is vacated. The matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.