Opinion
B163546.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL PEREZ, JR., Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, and April S. Rylaarsdam, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Ismael Perez, Jr., appeals from a judgment following resentencing. Defendant was convicted of two counts of second degree robbery (Pen., Code, § 211 [counts 1 and 2]), assault with a semiautomatic firearm (id., § 245, subd. (b) [count 3]), two counts of false imprisonment by violence (id ., § 236 [counts 4 and 5]), second degree commercial burglary (id., § 459 [count 7]), and possession of a firearm by a felon (id., § 12021.1 [count 6]). The jury found true the allegations a principal was armed with a handgun and defendant personally used a handgun in the commission of the offenses (id., §§ 1203.06, subd. (a)(1), 12022, subd. (a)(1), 12022.5, subd. (a)(1)). Defendant admitted a prior conviction for a serious or violent felony (id ., §§ 667. subds. (a)(1), (b)-(i), 1170.12). The trial court sentenced defendant to state prison.
We affirmed the judgment of conviction but remanded the case for resentencing. (People v. Arellano (Jan. 31, 2002, B138851 [nonpub. opn.].) On remand, defendant was sentenced by Judge Bob S. Bowers, Jr. rather than the trial judge, Judge Albert D. Matthews. Defendant contends Judge Bowers failed to exercise his discretion when sentencing defendant, making a second remand for resentencing necessary. Defendant also requests that the abstract of judgment be corrected. We agree that a remand for resentencing is necessary, but only as to count 2. At that time, the trial court also can correct the errors in the abstract of judgment.
STATEMENT OF FACTS
At about 6:30 p.m. on April 21, 1999, defendant and Javier Arellano (Arellano) walked into the office of a used car dealership on Figueroa in Los Angeles. They robbed the owner and his friend at gunpoint. Defendant hit the owner twice in the head with a handgun. Defendant and Arellano bound their victims with duct tape and threatened to kill them, then left in a car driven by Rene Jovel.
On appeal, defendant contended a remand for resentencing was required, in that the trial court, which wanted to impose a shorter sentence and mistakenly thought it was unauthorized to do so, made numerous sentencing errors. We agreed. The trial court was unaware that it had the discretion to impose concurrent sentences for the two robberies under the Three Strikes Law. Given the opportunity to do so, it might have exercised its discretion to impose concurrent sentences. Additionally, while it imposed a consecutive sentence on one robbery count, it imposed a concurrent enhancement on that count. The sentence on a single count cannot be split in this manner. Both sentence and enhancement must run consecutively or they must run concurrently. (People v. Arellano, supra, typed opn. at p. 23.)
The trial court also imposed a 10-year enhancement under Penal Code section 12022.53, subdivision (b), for assault with a firearm. The jury made no finding under section 12022.53 on this count. Thus, the enhancement was unauthorized. (People v. Arellano, supra, typed opn. at p. 23.)
On remand, Judge Bowers stated that he had reviewed the transcript and the sentencing memoranda. He said: "Its my intention in handling this matter to achieve what I believe was the intention of all of the parties at the time of this initial sentencing. . . . [¶] [¶] Its my distinct impression from reading the transcript that Judge Matthews had every intention of imposing 33 years, or somewhere in that range. . . . He indicates that there were multiple victims, planning, sophistication, it seemed like it was well planned. The defendant had served prior prison terms. The defendant was on parole. [His] co-defendant endangered public safety when driving at a high speed to evade the police. For those reasons, consecutive. [¶] So, I believe that the court stated there adequate grounds for imposing first of all the high term for count 3 itself [assault with a firearm], and perhaps the high term also for the—imposition of the higher term for the enhancement."
Judge Bowers did not feel he was "in a position at this point to go behind Judge Matthews or whatever his reasoning was." He was trying to impose correctly the sentence that Judge Matthews imposed incorrectly.
Judge Bowers imposed the high term—doubled—for the assault with a firearm and concurrent terms for the robberies. He stayed the sentences on the false imprisonment counts, possession of a firearm and burglary pursuant to Penal Code section 654. He imposed a firearm use enhancement under Penal Code section 12022.5, subdivision (a)(1), for the assault with a firearm, imposed a concurrent firearm use enhancement for one of the robberies, and imposed an enhancement for defendants prior conviction (id., § 667, subd. (a)). The total sentence imposed was 33 years.
CONTENTIONS
Defendant contends Judge Bowers failed to exercise his discretion when sentencing defendant, requiring that the case again be remanded for resentencing. We disagree.
Defendant also claims there are errors in the abstract of judgment that must be corrected. We agree.
DISCUSSION
The gravamen of defendants contention is that Judge Bowers failed to exercise his own informed discretion in sentencing defendant but rather "merely imposed the sentence he thought Judge Matthews would have imposed." Our review of the transcript of the resentencing hearing convinces us that Judge Bowers exercised his discretion when sentencing defendant to the term he believed Judge Matthews would have imposed.
Judge Bowers stated that he had reviewed the transcript and the sentencing memoranda. He indicated that he was familiar with the factors that went into Judge Matthewss original sentencing decision. He found an adequate basis for that decision. He stated his intention "to achieve what I believe was the intention of all of the parties at the time of this initial sentencing." He was going to accept Judge Matthewss reasoning and impose correctly the sentence that Judge Matthews imposed incorrectly.
In sum, Judge Bowers exercised his discretion to impose the sentence he believed Judge Matthews would have imposed. Judge Matthews, who presided over the trial, was in the best position to determine an appropriate sentence. Judge Bowers considered the parties positions as set forth in their sentencing memoranda as well as Judge Matthews position before imposing sentence. Inasmuch as this case involved a remand for resentencing due to sentencing errors, rather than an initial sentencing, we do not believe anything more was required. (See, e.g., United States v. Spinney (9th Cir. 1986) 795 F.2d 1410, 1413-1414 [initial sentencing before a judge who did not preside over the trial; judge had sufficient familiarity with case to exercise his discretion without reading trial transcripts].)
Judge Bowerss action did not "`fall[] outside the bounds of reason under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.) It was not arbitrary, capricious or patently absurd, and it did not result in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Franco (1994) 24 Cal.App.4th 1528, 1543.) Hence, it was not an abuse of discretion.
The amended abstract of judgment filed on March 26, 2003 erroneously identifies the judge as Albert D. Matthews rather than Bob S. Bowers. This error must be corrected.
It erroneously identifies the hearing date as January 27, 2000 rather than October 10, 2002. This error also must be corrected.
The amended abstract of judgment indicates a concurrent middle term of two years imposed on count two, robbery. The prison terms available for second degree robbery are two, three and five years. (Pen. Code, § 213, subd. (a)(2).) Defendant claims the abstract of judgment must be corrected to reflect the imposition of a concurrent low term of two years. The People note that Judge Matthews originally sentenced defendant to a consecutive sentence on count two of one-third the middle term, doubled as a second strike, for a total of two years. Since the full term is imposed when a defendant is sentenced concurrently (id., §§ 669, 1170.1; People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4), Judge Bowers should have imposed the full middle term of three years, doubled to six years (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
There is nothing in the transcript of the sentencing hearing to reflect Judge Bowerss intent with respect to the sentence on count two. The case therefore must be remanded for resentencing as to this count only, to allow Judge Bowers to impose a correct sentence as to count two.
On remand, in addition to resentencing defendant on count two and making the corrections indicated above, Judge Bowers should also recalculate defendants custody credits to reflect the time spent in custody between his original sentencing and the date of resentencing. The abstract of judgment currently reflects only the time in custody as of the date of defendants original sentencing.
The judgment is affirmed. The case is remanded for resentencing as to count two only. In addition, the court is directed to make the corrections to the abstract of judgment as indicated above.
We concur: VOGEL (MIRIAM A.), J., MALLANO, J. --------------- Notes: We set forth the facts only as necessary to discuss the issues on this appeal. The facts are set forth in greater detail in our previous opinion.