Opinion
G054052
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMAIKA QUATEL ROBINSON, Defendant and Appellant.
Christopher Love, 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, Lynne G. McGinnis, Eric A. Swenson and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF1730) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed and remanded with directions. Christopher Love, 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, Lynne G. McGinnis, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jamaika Quatel Robinson was convicted of multiple crimes with enhancements for personally using a firearm and being out on bail in another case. On appeal, he contends: 1) The trial court erred in failing to stay his sentence for the bail enhancement; 2) the court miscalculated his custody credits; and 3) the case must be remanded to allow the court to decide whether to dismiss the firearm enhancements. Respondent agrees with all three of these contentions. The only disputed issue is whether the failure to stay the bail enhancement was prejudicial to appellant. We think not. Therefore, while we remand for the trial court to address appellant's latter two claims, we affirm the judgment in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
Over a two-month period in 2015, appellant terrorized his girlfriend on multiple occasions. During one of the incidents, he broke into her home and threatened her with a gun. He also punched her in the head and said he was going to break her leg. The jury convicted him of two counts of aggravated assault, four counts of violating a protective order, and one count each of residential burglary, making a criminal threat, domestic battery with corporal injury and possessing a firearm as a felon. It also found he personally used a firearm during three of the offenses. In a bifurcated proceeding, appellant admitted he was out on bail in case No. 13NF1538 when he committed the burglary and that he had previously suffered a strike conviction.
At the start of the sentencing hearing, the trial court recognized case No. 13NF1538 had yet to be adjudicated, and defense counsel stated appellant "is still going to want to go forward to trial" on that case. However, defense counsel also indicated appellant might be inclined to plead guilty in that case, depending on the sentence he received in the present case. The trial court ended up dismissing appellant's prior strike conviction and sentencing him to 16 years and 8 months in prison, including 3 years for the firearm enhancements and 2 years for the bail enhancement.
After imposing sentence, the court asked the prosecutor if she was seeking a protective order. She said she was, and began to prepare one for the court's approval. Defense counsel then told the court, "While we're waiting for the protective order I will deal with [case No.] 13NF1538." At that point, there was a break in the proceedings, and we do not know the details of how that case was handled. However, the abstract of judgment in this case shows appellant was convicted by plea of second degree burglary in case No. 13NF1538 on the very same day he was sentenced for his instant crimes. The court sentenced appellant to a 16-month concurrent term for that burglary.
DISCUSSION
The Bail Enhancement
Appellant contends the trial court erred by failing to stay his two-year sentence for the bail enhancement. Respondent concedes the error but maintains it was rendered moot by appellant's subsequent guilty plea in case No. 13NF1538, and therefore he suffered no prejudice as a result of the error. We agree with respondent that the error was not prejudicial under the circumstances presented.
When a defendant is convicted of a secondary offense while he was out on bail for a primary offense, the trial court cannot punish him for the bail enhancement until he has been convicted of the primary offense. (Pen. Code, § 12022.1, subd. (d); People v. Meloney (2003) 30 Cal.4th 1145, 1149.) So, if the defendant is convicted of a secondary offense before his primary offense is adjudicated, and the trial court imposes sentence on the enhancement, execution of the enhancement sentence must be stayed. (Ibid.) Then, if the defendant is later convicted of the primary offense, the stay is lifted. (Ibid.)
Here, the trial court sentenced appellant for the bail enhancement before his primary offense in case No. 13NF1538 was adjudicated. Therefore, it should have stayed execution of the enhancement sentence. However, shortly after appellant was sentenced on the enhancement, there was a break in the proceedings during which appellant's primary offense in case No. 13NF1538 was adjudicated. Indeed, the abstract of judgment reflects appellant pleaded guilty to second degree robbery in that case on the same day he was sentenced in the present case. Thus, if the trial court had stayed execution of sentence on the bail enhancement, the stay would have been lifted by virtue of that guilty plea, and there would be no reason to disturb the sentence.
Appellant speculates the abstract of judgment might be wrong, and therefore we should remand the matter so the trial court "can conclusively determine the status of case number 13NF1538[.]" However, "[u]nder ordinary rules of appellate procedure a judgment of a lower court is presumed to be correct; all intendments and presumptions are indulged to support the judgment on matters as to which the record is silent, and error must be affirmatively shown. [Citation.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (People v. Sanford (1976) 63 Cal.App.3d 952, 958.) While appellant has shown the trial court erred in failing to stay his sentence for the bail enhancement, he has not demonstrated the error was reversible in the sense it caused him any actual prejudice. In fact, the record negates the possibility of prejudice because it shows appellant subsequently pled guilty to the primary offense for which he was out on bail. We affirm the enhancement as it stands.
Presentence Credits
However, appellant is correct that he was shortchanged on his presentence credits. As respondent concedes, appellant should have been given two additional days of actual credit, plus two days of conduct credit, for a total presentence credit award of 510 days. We will direct the trial court to modify appellant's credits on remand.
The Firearm Enhancements
The reason a remand is required is because of a recent change in Penal Code section 12022.5, the firearm enhancement statute at issue in this case. At the time of sentencing in this case, there was no mechanism in the statute for the trial court to dismiss a firearm enhancement in the interest of justice. Consequently, appellant incurred a three-year firearm enhancement on the burglary count and four-year stayed terms on two other counts. However, effective January 1, 2018, the statute expressly grants trial courts such power. (Pen. Code, § 12022.5, subd. (c).) It is undisputed appellant is entitled to the benefit of this modification since his case is not yet final. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299; People v. Francis (1969) 71 Cal.2d 66; In re Estrada (1965) 63 Cal.2d 740; People v. Woods (2018) 19 Cal.App.5th 1080.) Therefore, we remand the matter for the trial court to exercise its discretion under Penal Code section 12022.5, subdivision (c).
DISPOSITION
The judgment is affirmed and the case is remanded for further proceedings. On remand, the trial court shall modify appellant's presentence credit award and decide whether one or more of his firearm enhancements should be stricken or dismissed in the interest of justice. In addition, the court clerk shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.