Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C147393, C148890
Sepulveda, J.
This court previously affirmed defendant’s convictions of first degree burglary (Pen. Code, § 459—count 1), first degree robbery (§ 211/212.5—counts 2 and 3), and forcible rape perpetrated in the course of a burglary (§ 261, subd. (a)(2), 667.61, subd. (e)(2)—count 4). We remanded the case to the trial court, however, for resentencing, finding that the trial court had erred by imposing an indeterminate life term and a determinate term for the rape offense. The trial court resentenced defendant and defendant appeals from that sentence; his counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
All further section references are to the Penal Code.
The facts underlying the defendant’s convictions are not relevant to the current appeal, which lies only from his resentencing following remand. The facts are detailed in our earlier opinion. (People v. Scott (Aug. 30, 2007, A112497) [nonpub. opn.].)
The trial court resentenced defendant on March 26, 2008, to the following term: an indeterminate term of 15 years to life on count 4, plus a consecutive determinate term of five years (calculated as follows: the midterm of four years on count 3, plus one year for the enhancement for use of a deadly weapon pursuant to section 12022, subdivision (b)(1)). On count 2, the court sentenced defendant to one-third the midterm (16 months) to run concurrently. On count 1, the court sentenced defendant to one-third the midterm, or 16 months, to run concurrently, and ordered that sentence stayed pursuant to section 654.
To be precise, the trial court sentenced on this count as follows: “As to the first count of the information, a violation of Penal Code section 459, the court finds that it merges under 654 with the sentencing imposed in 667.61(E)(2). [¶] However, if the court has got it wrong . . . then the court would choose, alternatively . . . the mid term as set forth in Penal Code section 261 [sic] of four years, one third of which is 16 months, to run concurrent with the sentence imposed in count 3.” Thus the court did not actually impose the midterm on count 3, and stay it pursuant to section 654, as it should have. Further, we assume the court meant to reference section 461, rather than section 261, when referring to the punishment for a violation of section 459, subdivision (a).
A basic error appears in this sentencing, although it is an error of no consequence. As to the counts on which the court intended to impose concurrent sentences (apparently counts 1 and 2), the trial court mistakenly calculated the term to be imposed as if it were imposing a consecutive sentence under section 1170.1, by calculating the term as one-third of the midterm. Correctly imposed, the sentence on each of these counts where the court intended to impose concurrent sentences should have been merely the full term selected by the trial court (in this case the midterm of four years as to each count). As to count 1, the court should have imposed the midterm of four years, and stayed that sentence pursuant to section 654.
However, these errors do not impact the total sentence correctly imposed by the trial court (an indeterminate term of 15 years to life, plus a consecutive determinate term of five years). The determinate term should also have been ordered to be served first, before defendant begins to serve his indeterminate term. (§ 669; People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) Because these technical errors in sentencing do not impact the overall sentence defendant received, no arguable issue requiring briefing by the parties appears.
The abstract of judgment and minute order of sentencing are ordered to be modified to reflect that defendant was sentenced to the midterm of four years on both counts 1 and 3, each to run concurrently, that the term on count 1 was ordered stayed pursuant to section 654, and that the consecutive determinate term of five years shall be served first, before defendant begins his indeterminate term. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.