Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FVI800629, J. David Mazurek, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio, and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
On August 19, 2008, the District Attorney of San Bernardino County charged defendant and appellant Victor Savchenko, Sr., with attempted criminal threats under Penal Code sections 664 and 422 (count 1), and residential burglary under section 459 (count 2). The third amended information also alleged, as to count 2, that defendant personally used a knife under section 12022, subdivision (b)(1), and a hatchet under section 12022, subdivision (b)(1). Defendant pled not guilty and denied the allegations. Following a jury trial, defendant was found guilty of both charges, and the two deadly weapon use allegations were found true.
All statutory references are to the Penal Code unless otherwise specified.
On November 21, 2008, defendant was sentenced to state prison for the lower term of two years on the burglary conviction, and a one-year term was added for both deadly weapon use findings, for a total of four years. A concurrent term of eight months (one-third the middle term) was imposed on the attempted criminal threats conviction.
On appeal, defendant contends that the trial court erred in imposing consecutive one-year sentences for the two weapon use enhancements rather than staying one of the sentences. The People agree with defendant. For the reasons set forth below, we shall remand this case to the trial court for resentencing.
I
FACTUAL AND PROCEDURAL HISTORY
In April of 2007, defendant and his wife of 29 years, Irina Savchenko, separated. Defendant was upset about the separation and blamed his wife. Mrs. Savchenko moved in with their daughter, Olga, in the daughter’s Hesperia home.
On December 24, 2007, four or five of the six Savchenko children joined Mrs. Savchenko for dinner at Olga’s home. Olga was not present; she was out of town. Defendant was invited but did not attend.
After dinner, Mrs. Savchenko retired. One of the sons, Anton, who was staying at Olga’s also retired. Her daughter, Marina, got on the computer in the office, while her son, Pavel, stayed up drinking in the kitchen. The others left.
Mrs. Savchenko was awakened by Pavel, who gave her the telephone. Defendant was on the phone. He was upset, called her bad names, and told her he was coming to the house to kill her. Defendant called several more times and argued with Pavel.
Shortly before 11:00 p.m., defendant came through the front door; he was yelling and waving a knife and an ax. Defendant was drunk. Pavel approached defendant, grabbed his hands, and was able to get defendant to drop the ax. They began struggling for control of the knife. Anton and Mrs. Savchenko awakened to the noise of the fight; Anton called the police. Both Anton and Marina spoke to the 911 operator.
When San Bernardino County Sheriff’s Deputy Kevin McCurdy arrived, Pavel had defendant in a bear hug. After separating them, Deputy McCurdy saw blood on defendant’s shirt. Defendant had been stabbed in the upper chest during the struggle with his son.
According to defendant, he called his wife the evening of December 24, but did not threaten her. He went to Olga’s house in response to a telephone call from Pavel inviting defendant. Defendant took his ax to chop wood the next day and took his knife because his wife liked to use it to cut meat. He put both the knife and ax down when he entered the house. He and Pavel hugged. During the hug, a bandage he had put on his chest earlier in the evening came loose, and he pushed Pavel away. Defendant stated that he stabbed himself that evening while cutting a watermelon. Thereafter, Pavel got angry and they argued and fought. They stopped fighting after Mrs. Savchenko came out and told them to stop.
II
ANALYSIS
Defendant’s sole contention on appeal is that the trial court erred in imposing consecutive sentences on the two arming enhancements. The People agree.
Under section 1170.1, subdivision (f), “[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.” This section has been interpreted to “prevent[] execution of sentences for multiple [deadly or dangerous weapon] enhancements.” (People v. Crites (2006) 135 Cal.App.4th 1251, 1255; see People v. Rodriguez (2009) 47 Cal.4th 501, 508-509; People v. Jones (2000) 82 Cal.App.4th 485, 492.)
In this case, after the jury found defendant guilty of the residential burglary charge in count 2, it also found true the two deadly weapon use allegations under section 12022, subdivision (b)(1). The trial court imposed consecutive one-year terms on both enhancement findings. Both parties agree that, under section 1170.1, subdivision (f), the trial court erred.
Contrary to defendant’s argument that we should modify the sentence, we believe this case should be remanded for resentencing to allow the trial court to reexamine and, if it deems it appropriate, revise its discretionary sentencing choices. (See People v. Rodriguez, supra, 47 Cal.4th at pp. 509-510; and People v. Calderon (1993) 20 Cal.App.4th 82, 88.)
Here, the trial court erred in imposing consecutive sentences on the two arming enhancements. This decision by the court may have affected its discretionary sentencing choices. Therefore, remand is necessary. Moreover, as the People point out, the trial court erroneously imposed one-third the middle term for count 1, attempted criminal threats. As a concurrent term, imposition of one-third the middle term was error as that reduction only occurs to subordinate terms when consecutive sentences are imposed. (§ 1170.1, subd. (a).)
Accordingly, the case is remanded to the trial court for resentencing. On remand, the trial court must stay one of the two deadly weapon use enhancements, revise its sentence with regard to making criminal threats (count 1), and may revise its discretionary sentencing choices.
III
DISPOSITION
The case is remanded to the trial court for resentencing in a manner consistent with the views expressed in this opinion. After resentencing, the trial court is directed to amend the abstract of judgment so as to reflect the modification and forward a certified copy of the amended judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., King, J.