Opinion
H043795
05-17-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC MARCELLO PEREZ-REYES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS140408C, SS140195A)
Defendant Eric Marcello Perez-Reyes appeals from a two-year prison sentence for active gang participation that was executed when defendant violated the conditions of its suspension. Upon defendant's timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no arguable issues. We notified defendant of his right to submit written argument on his own behalf. Defendant filed a letter raising three issues.
We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440-441.) We address the issues defendant raised in his letter. We also include here a brief description of the facts and procedural history of the case, and the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123-124.) Finding no arguable issue, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
All factual information is derived from defendant's probation report.
A. POSSESSION CASE (CASE NO. SS140195A)
An officer stopped the car defendant was driving after smelling "a strong odor of marijuana" coming from the car in January 2014. Defendant, who was accompanied by two other men, told the officer he had a suspended license. The officer searched the car and discovered a loaded pistol in the center console; several bindles of cocaine in a pair of pants in the trunk; marijuana; and $300 in defendant's wallet.
Defendant was charged by felony complaint with being an occupant of a vehicle containing a concealed firearm (Pen. Code, § 25400, subd. (a)(3); unspecified statutory references are to this code); carrying a loaded firearm (Pen. Code, § 25850, subd. (a)); possessing a controlled substance (cocaine) (former Health & Saf. Code, § 11350, subd. (a)); and possessing a controlled substance (cocaine) with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)). The complaint alleged that defendant was not the registered owner of the firearm. (§ 25400, subd. (c)(6).) Defendant later pleaded guilty to possessing a controlled substance (former Health & Saf. Code, § 11350, subd. (a)), and the prosecutor agreed to seek dismissal of the remaining counts and the special allegation.
A violation of Health and Safety Code section 11350 is now punishable as a misdemeanor, absent certain prior convictions. (Health & Saf. Code, § 11350, subd. (a).)
B. ACTIVE GANG PARTICIPATION CASE (CASE NO. SS140408C)
Police officers responded to a report of a stabbing outside a restaurant in Seaside in February 2014. Defendant and two other men had confronted Oscar Romero in the restaurant's bathroom and asked Romero what gang he claimed. Romero told them he did not affiliate with gangs and left to join two of his friends. A verbal altercation between the six men occurred outside the restaurant. One of defendant's friends shouted " 'Norte,' " displayed gang-related tattoos, and tried to hit one of Romero's friends. Romero and his friends ran away, but one of them fell and was stabbed in the back by one of defendant's friends. Defendant may have also assaulted the stabbing victim.
Defendant was charged in an amended felony complaint with assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); assault with a deadly weapon (§ 245, subd. (a)(1)); and active participation in a criminal street gang (§ 186.22, subd. (a)). The assault counts were alleged to have been committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). Defendant later pleaded no contest to active gang participation, and the prosecutor agreed to seek dismissal of the remaining counts and special allegations.
C. PROBATION IN POSSESSION AND ACTIVE GANG PARTICIPATION CASES
The trial court suspended imposition of sentence and placed defendant on three years' formal probation in each of the two felony cases in July 2014. In the possession case, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)(1)) with an additional suspended $300 probation revocation fine (§ 1202.44); a $40 court operations assessment (§ 1465.8); a $30 court facilities funding assessment (Gov. Code, § 70373); a $50 fine (Health & Saf. Code, § 11372.5) plus $155 in penalty assessments; a $25 administrative screening fee (§ 1463.07); a $55 fee (citing § 1205, subd. (d)); and a $50 fine (Health & Saf. Code, § 11372.7) plus $155 in penalty assessments. In the active gang participation case, the trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)(1)) with an additional suspended $300 probation revocation fine (§ 1202.44); a $40 court operations assessment (§ 1465.8); a $30 court facilities funding assessment (Gov. Code, § 70373); $864 for probation report preparation plus $81 per month for probation supervision (subject to modification if defendant provided financial information to the probation department showing his inability to pay); and victim restitution in an amount to be determined later.
The penalty assessments are broken down in the probation report as follows: $50 (§ 1464, subd. (a)(1)); $35 (Gov. Code, § 76000, subd. (a)(1)); $10 (§ 1465.7); $25 (Gov. Code, § 70372); $10 (Gov. Code, § 76000.5); $5 (Gov. Code, § 76104.6, subd. (a)(1)); and $20 (Gov. Code, § 76104.7).
Section 1205, subdivision (d) does not refer to any fine. We do not decide whether the trial court erred in imposing the fine because defendant did not present the claim at the time of sentencing or make a motion to correct the fine in the trial court. (§ 1237.2.)
The same penalty assessments were imposed for the Health and Safety Code section 11372.7 fine as were imposed for the Health and Safety Code section 11372.5 fine. The trial court's oral pronouncement (and the probation report) refers to Health and Safety Code section 11372.5 twice instead of differentiating between Health and Safety Code sections 11372.5 and 11372.7. The minutes correctly differentiate between the two sections, but list the Health and Safety Code section 11372.7 fine as $40 rather than $50. Because the penalty assessments are calculated as multiples of the base fine and the assessments imposed here were all calculated using a $50 base fine, we conclude the trial court imposed a $50 Health and Safety Code section 11372.7 fine. Though that section requires an ability to pay determination, defendant forfeited any challenge to his ability to pay by failing to object in the trial court. (See People v. Trujillo (2015) 60 Cal.4th 850, 858.)
D. IMPOSITION AND SUSPENSION OF SENTENCE
Defendant violated his probation by committing a misdemeanor (the record does not disclose the precise violation but it appears he was caught driving with a suspended license). The trial court revoked, reinstated, and modified defendant's probation in the possession case. In the active gang participation case, the court imposed the middle term of two years (§ 186.22, subd. (a)), but suspended execution of that sentence, subject to conditions.
E. EXECUTION OF SUSPENDED SENTENCE
Defendant admitted violating conditions again by possessing or consuming alcohol. At the sentencing hearing in July 2016, the prosecutor asked the trial court to grant defendant's request under section 1170.18 in the possession case to designate the offense a misdemeanor and to impose a one-year county jail sentence consecutive to the prison sentence for active gang participation. Defense counsel argued that if the trial court intended to impose a consecutive sentence, the court should defer deciding the section 1170.18 petition until after imposing a felony sentence in the possession case.
In the active gang participation case, the trial court ordered that the previously suspended two-year prison sentence be executed. Defendant received 361 days presentence credit, based on 181 actual days and 180 days conduct credit (§ 4019). The trial court imposed the previously suspended probation revocation fine and imposed an additional suspended $300 parole revocation fine (§ 1202.45).
In the possession case, the trial court imposed a consecutive eight-month felony sentence (one-third mid-term; § 1170.1, subd. (a)). Defendant received 32 days presentence credit, based on 16 actual days and 16 days conduct credit. The trial court immediately recalled the sentence, granted defendant's section 1170.18 petition, and resentenced the possession conviction as a misdemeanor. As to the misdemeanor sentence, the court stated the "eight months will remain in place with the credits as previously stated." The abstract of judgment lists the total felony time imposed as two years. In the space for other orders, the abstract notes that for the possession case defendant is to "serve 8 months/CTS 32 days consecutive."
The court also sentenced defendant in a third case for a misdemeanor, which was to run consecutive to the active gang participation and possession cases. That case is not on appeal to this court because there were no felony convictions.
II. DEFENDANT'S ARGUMENTS
Defendant makes three arguments on his own behalf. He argues that his eligibility for section 1170.18 resentencing in the possession case should have been "reviewed prior to" sentencing. The trial court was not required to consider the sentencing and the section 1170.18 petition in any particular order. And defendant benefited by having the section 1170.18 petition heard after he was sentenced. Instead of receiving a one-year consecutive sentence (as the prosecutor requested and as the court stated it intended to do), he received an eight-month consecutive sentence (because section 1170.18, subdivision (e) precludes a trial court from resentencing a defendant to a term longer than the original sentence).
Defendant contends the trial court should have given him "one last chance" by reinstating probation. But defendant had violated his conditions multiple times, and the trial court acted well within its discretion in terminating probation and executing the previously-suspended sentence. (People v. Martinez (1985) 175 Cal.App.3d 881, 896.)
Defendant asserts that the court should have ordered the misdemeanor possession sentence to run concurrent to the active gang participation felony sentence. There is no statutory presumption in favor of concurrent sentences; that decision is left to the sound discretion of the trial court. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Though sentences are deemed concurrent by operation of law when a trial court fails to state how sentences are to run (§ 669, subd. (b)), here the trial court made clear that the sentences were consecutive.
Defendant's appellate counsel's brief states that defendant's "sentences were ordered to run concurrently to each other," but nothing in the record supports that statement. --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P. J. /s/_________ Premo, J.