Opinion
C087054
09-12-2019
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY VERCELES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE014584)
A jury convicted defendant Mark Anthony Verceles of assault with a deadly weapon, assault by means of force likely to produce great bodily injury, and making a criminal threat. The jury also found true two prior serious felony enhancement allegations. The trial court sentenced defendant to 10 years in prison, including five years for one of the prior serious felony enhancements.
Defendant now asks us to remand the matter to permit the trial court to exercise its new discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2) regarding whether to dismiss the prior serious felony enhancement allegation. The People agree remand is appropriate and also request correction of a clerical error in the abstract of judgment.
We will remand the matter to permit the trial court to exercise its new discretion under Senate Bill No. 1393, direct the clerk to correct the clerical error in the abstract of judgment, and otherwise affirm the judgment.
BACKGROUND
The facts underlying defendant's convictions are not relevant to the contentions on appeal. The jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and making a criminal threat (Pen. Code, § 422) with an additional finding that he personally used a deadly weapon (§ 12022, subd. (b)(1)). In a bifurcated proceeding the jury also found true two prior serious felony conviction enhancement allegations and found that they were strike convictions. (§§ 667, subds. (b)-(i), 1170.12, 667, subd. (a).)
Undesignated statutory references are to the Penal Code. --------
With regard to the two prior strike convictions, the People informed the probation department they were only proceeding to sentencing on one of them. At sentencing, the trial court considered the probation report, various letters provided by defendant, and argument by the parties. The trial court found a number of factors in aggravation and none in mitigation, but deemed the probation department's recommended 13-year term "somewhat excessive." On the criminal threats conviction, the trial court sentenced defendant to the middle term of two years, doubled for the prior strike conviction, plus an additional year for the personal use enhancement. The trial court also imposed a consecutive five years for the prior serious felony conviction enhancement. The trial court imposed and stayed sentences on the other two convictions pursuant to section 654.
I
Defendant asks us to remand the matter to permit the trial court to exercise its new discretion under Senate Bill No. 1393. The People agree that Senate Bill No. 1393 applies retroactively and that the matter should be remanded.
The five-year enhancement imposed by the trial court for the prior serious felony conviction was mandatory at the time. But Senate Bill No. 1393 amended section 667, subdivision (a), and section 1385, effective January 1, 2019, to give trial courts discretion to strike or dismiss such enhancements. We agree with the parties that this change in law applies to defendant retroactively. (People v. Garcia (2018) 28 Cal.App.5th 961, 973 (Garcia).)
Where a trial court is unaware of its sentencing choices, remand is required unless "the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) Nothing in the trial court's statements during sentencing clearly indicate it would not have exercised its discretion to dismiss the five-year enhancement. Remand is the general rule in this context, and on this record we decline to deviate from the general rule. (See, e.g., Garcia, supra, 28 Cal.App.5th at p. 973, fn. 3.) Accordingly, we will remand the matter to allow the trial court to exercise its new discretion.
II
The People note a clerical error in the abstract of judgment. Defendant was convicted of making a criminal threat in violation of section 422, but the abstract of judgment indicates a violation of section 244. This appears to be a typographical error that we may order corrected at any time (People v. Mitchell (2001) 26 Cal.4th 181, 185), and we will do so.
DISPOSITION
The matter is remanded to permit the trial court to exercise its new discretion under Senate Bill No. 1393. The trial court is also directed to correct the abstract of judgment to reflect defendant's conviction for making a criminal threat in violation of Penal Code section 422. The judgment is otherwise affirmed. After the trial court exercises its discretion, it shall forward a certified copy of the amended and/or corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
ROBIE, J.