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People v. Robles

California Court of Appeals, Fifth District
Jul 9, 2008
No. F053067 (Cal. Ct. App. Jul. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County No. MCR12754, Edward P. Moffat, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

INTRODUCTION

Appellant, Arthur Olguin Robles, was found guilty after a jury trial of 14 of 15 serious felonies related to a crime spree that involved robbery, a high speed chase, and weapons fired at law enforcement officers. Multiple enhancements as to each count were also found true. On appeal, appellant contends, and respondent concedes, several sentencing errors. We will reverse appellant’s sentence and remand for resentencing.

Unless otherwise noted, all statutory references are to the Penal Code.

SENTENCING

On May 29, 2007, appellant was sentenced to an aggregate term of 77 years in prison. The court chose count 14 (§ 245, subd. (d)(2)) as the principle term. The court imposed an upper term sentence of 9 years doubled pursuant to the three strikes law. The court imposed a consecutive term of 10 years for the firearm enhancement (§ 12022.53, subd. (b)) plus consecutive terms of 5 years for the section 667, subdivision (a)(1) enhancement and 3 years for the section 667.5, subdivision (a) enhancement.

The court imposed consecutive sentences of four years on each of counts 7, 8, and 10 (§ 245, subd. (b)). These sentences were based on a calculation of the midterm of 6 years, doubled pursuant to three strikes to 12 years, and imposing one-third of the 12-year sentence. On each of counts 7, 8, and 10, the court imposed consecutive sentences of 20 months for violation of section 667, subdivision (a)(1), and one year for violation of section 667.5, subdivision (a). On counts 7 and 10, the court imposed consecutive sentences of 16 months for the section 12022.5, subdivision (a) enhancement.

All of the trial court’s sentences for subordinate counts were based on the same calculation of one-third of the midterm sentence which was doubled pursuant to three strikes. The court applied a formula of one-third of the sentence for each enhancement applied to a subordinate count.

The court imposed a consecutive term of 4 years on count 11 (§ 211). The court imposed consecutive sentences on count 11 of one year for the section 667.5, subdivision (a) enhancement, 20 months for the section 667, subdivision (a)(1) enhancement, and 40 months for the section 12022.53, subdivision (b) enhancement.

The court imposed a consecutive sentence 16 months for appellant’s conviction on count 13 (Veh. Code, § 2800.2, subd. (a)). The court imposed consecutive sentences of 16 months each on counts 1 and 3 (§ 247, subd. (b)) plus 20 months on each of these counts for the section 667, subdivision (a)(1) enhancement. The court imposed a consecutive prison term of one year for the section 667.5, subdivision (b) enhancement.

The court imposed concurrent sentences on counts 5, 9, and 12 (§ 12021.1, subd. (a)) and concurrent sentences on the enhancements related to those counts. The court imposed concurrent sentences on counts 2 and 4 (§ 247, subd. (b)) and concurrent sentences on the enhancements related to those counts. The court stayed appellant’s sentence on count 6 (§ 12316, subd. (b)(1)) and stayed sentences on the enhancements related to that count. The court imposed a restitution fine of $200, a fine of $3,170 for violation of Vehicle Code section 2800.2, subdivision (a), and other assessments, surcharges, and fees. The court granted custody credits for actual time served of 1,792 days plus conduct credits of 268 days for a total of 2,060 days of credit.

DISCUSSION

Appellant contends, and respondent concedes, several sentencing errors. Accordingly, we will reverse appellant’s sentence and remand to the trial court to resentence appellant.

Because the only issues involve sentencing, we review the facts only to the extent they are relevant to a particular sentencing issue.

Robbery Sentence

Appellant was charged in count 11 with robbery (§ 211). The jury’s verdict on count 11 found appellant guilty of the charged offense as set forth in the first amended information. Appellant was not charged with first degree robbery, but was sentenced to one-third of a six-year midterm, the sentence for first degree burglary (§ 213, subd. (a)(1)(A)), which was then doubled pursuant to the three strikes law. The court imposed a sentence of four years on count 11. The trial court is not permitted to imply a defendant’s robbery conviction was in the first degree. (People v. Thomas (1978) 84 Cal.App.3d 281, 284.) The midterm sentence for second degree robbery is three years (§ 213, subd. (a)(2)). One-third of a doubled three-year term (six years) is two years, not the four-year sentence imposed by the trial court.

Section 654 and Counts 10 and 11

The victim, Esther Torres, was working as a bank teller when she was robbed at gunpoint by appellant on July 10, 2002. To accomplish the offense, appellant pointed a gun at Torres. Torres was the alleged victim of counts 10 and 11. The trial court, however, sentenced appellant to consecutive prison terms on both counts.

The parties agree that under section 654, appellant was engaged in an indivisible course of conduct and that, although he violated more than one statute, he could only be punished once for his conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, 1216-1217.) The trial court erred in failing to apply section 654 to counts 10 and 11.

Where a trial court erroneously fails to stay terms subject to section 654, the appellate court must stay sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court. (People v. Diaz (1967) 66 Cal.2d 801, 808; In re Wright (1967) 65 Cal.2d 650, 656; People v. Pena (1992) 7 Cal.App.4th 1294, 1312-1313.) Count 10 carries a longer sentence than count 11. Accordingly, we will order the trial court to stay appellant’s sentence on count 11 pursuant to section 654.

Multiple Sentences for Section 667, Subdivision (a)(1)

The trial court sentenced appellant to multiple sentences (counts 1, 3, 7, 8, 10, & 11) for a single prior serious felony enhancement (§ 667, subd. (a)(1)). The court initially sentenced appellant on count 14 to a single sentence of five years for the prior serious felony enhancement. Only the sentence on count 14 for this enhancement can be applied.

Because this five-year sentence applies to the offender, not to a particular offense, on remand the trial court should apply this prison term aggregately to appellant’s entire sentence.

There are two kinds of enhancements: those which go to the nature of the offender, and those which go to the nature of the offense. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401.) A defendant convicted of multiple felonies is subject to only one enhancement for a prior felony conviction; the enhancement goes to the nature of the offender rather than to the nature of the offense and therefore does not attach to particular counts but, instead, is added just once as the final step in computing the total sentence. (People v. Smith (1992) 10 Cal.App.4th 178, 182-183.) Appellant can be sentenced only once for the prior serious felony enhancement.

Appellant received 20-month sentences on six counts for an unauthorized sentence of an additional 10 years. The duplicate enhancements must be stricken.

Section 667.5, Subdivision (a) Sentences

Appellant was charged in the first amended information with one prior serious felony conviction for robbery in 1993. This single conviction formed the basis for all of the recidivist enhancements alleged in the information. Section 667.5, subdivision (a) provides for a consecutive term of three years for each prior separate prison term served by the defendant where the prior offense was a violent felony specified in subdivision (c) of section 667.5. In People v. Jones (1993) 5 Cal.4th 1142, 1150-1152 (Jones), the California Supreme Court held that only the greater term of an enhancement can be applied when the same prior offense qualifies as a serious felony under section 667, subdivision (a) and also resulted in a prior prison term under section 667.5, subdivision (b). Any such enhancement was superseded by appellant’s sentence of five years pursuant to section 667, subdivision (a).

The trial court erroneously applied section 667.5, subdivision (a) enhancements to counts 5, 9, and 14 (three-year terms) and to counts 7, 8, 10, and 11 (one-third of the three-year term, or one-year term). This type of statute is related to the offender, not particular offenses and are added only once to the aggregate sentence. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164 (Gutierrez).) Accordingly, on remand, the trial court shall strike all sentences imposed pursuant to section 667.5, subdivision (a).

Prior Prison Term Enhancement

Appellant was sentenced to a one-year term for the prior prison term enhancement pursuant to section 667.5, subdivision (b). The parties concur that this sentence must also be stricken because the court had already sentenced appellant to a term of five years for the same prior conviction pursuant to section 667, subdivision (a). (Jones, supra, 5 Cal.4th at pp. 1150-1152.) On remand, the trial court shall strike the prior prison term enhancement.

Custody Credit

Appellant acquired actual custody credits of 1,793 days but was given 1,792 days of credit. Appellant was incarcerated 183 days in 2002, 365 days in 2003, 366 days in 2004, 365 days in 2005, 365 days in 2006, and 149 days in 2007. This total is 1,793 days. Appellant is entitled to credit for all actual days of pre-sentence and post-sentence custody. (People v. Cooper (2002) 27 Cal.4th 38, 40.)

DISPOSITION

Appellant’s sentence is reversed. The case is remanded for the trial court to impose only a two-year sentence on count 11 and to stay it pursuant to section 654. The court shall impose only a single sentence of five years for appellant’s prior conviction pursuant to section 667, subdivision (a). The court shall strike all remaining sentences imposed pursuant to sections 667, subdivision (a) and 667.5 subdivisions (a) and (b). (Gutierrez, supra, 28 Cal.4th at p. 1164.) The court is ordered to recalculate appellant’s pretrial and postsentence custody credits, to prepare an amended abstract of judgment and minute order, and to forward these documents to the appropriate authorities. The judgment is otherwise affirmed.

Appellant was charged in a first amended information as follows: shooting at an unoccupied vehicle (§ 247, subd. (b), counts 1, 2, 3 & 4), possession of a firearm by a convicted felon (§ 12021.1, counts 5, 9 & 12), possession of ammunition by a convicted felon (§§ 12021, 12021.1, & 12316, subd. (b)(1), count 6), assault with a semiautomatic firearm (§ 245, subd. (b), counts 7, 8 & 10), robbery (§ 211, count 11), driving with a willful or wanton disregard for the safety of persons or property while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a), count 13), and assault with a firearm on a peace officer (§ 245, subd. (d)(2), counts 14 & 15).

As to counts 5, 6, 7, 8, 9, 10, 11, and 12, it was alleged appellant personally used a firearm in the commission of those offenses (§ 12022.5, subd. (a)(1)). As to counts 14 and 15, it was alleged appellant personally used a firearm in the commission of those offenses (§§ 12022.5, subds. (a) and (d) & 12022.53, subd. (b)). It was alleged appellant used a firearm in committing count 11 (§§ 12022.5, subd. (a)(1) & 12022.53, subd. (b)). For a prior serious felony conviction in 1993 for robbery, the information alleged a qualifying conviction under the three strikes law (§ 667, subds. (b) through (i)), a prior prison term enhancement (§ 667.5 subds. (a) & (b)), and an enhancement for a prior serious felony conviction (§ 667, subd. (a)(1). An enhancement was alleged that appellant committed his offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

The trial court granted appellant’s section 1118.1 motion and dismissed count 15. The court dismissed the gang allegation as to counts 1, 2, 3, 4, 7, and 8. The jury found the remaining gang enhancements not true and found the gun use enhancements true. In a bifurcated proceeding, appellant admitted the prior serious felony allegation was true, as well as that it was a strike, a serious felony, and that appellant had served a prior prison term for the conviction.


Summaries of

People v. Robles

California Court of Appeals, Fifth District
Jul 9, 2008
No. F053067 (Cal. Ct. App. Jul. 9, 2008)
Case details for

People v. Robles

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTHUR OLGUIN ROBLES, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 9, 2008

Citations

No. F053067 (Cal. Ct. App. Jul. 9, 2008)