P. v. Bates

Filed 8/1/07 P. v. Bates CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE COURT:

1. On page 15, in the first full paragraph, the last sentence, beginning "In this case," is deleted and replaced with the following:

In this case, the trial court also imposed six consecutive one-year sentences, but then stayed the execution of that sentence (hereinafter, the six-year sentence).

2. On page 16, line 2, following the words "of the two cases?" add the following footnote, which will require renumbering of all subsequent footnotes:

We explicitly do not decide whether the trial court properly imposed a six-year enhancement twice when sentencing for both cases. The only issue presented and the only issue we decide is whether, once imposed, the trial court was authorized to stay the six-year sentence imposed in this case.

3. On page 17, the second full paragraph, the first sentence, beginning "Bates correctly" is deleted and replaced with the following:

Bates correctly points out that when a trial court imposes a sentence based on a prior prison term enhancement but does not want a defendant to serve that sentence, its only option is to exercise its discretion to strike the sentence pursuant to section 1385.

4. On page 17, former footnote 10, the first sentence, delete the words "acknowledges" through "but he," so the sentence reads as follows:

Bates argues that the proper remedy is for us to order that the six-year sentence be stricken.

5. On page 18, within the continuation of former footnote 10, in the full first sentence beginning with the word "Because," between the words "remedy and even though" and "Bates may end up," insert the phrase "after remand," and delete the words "if, on remand" through the end of the sentence, so the sentence reads as follows:

Because we have discovered an unauthorized sentence in the course of considering Bates's appeal, we may remand for resentencing even though Bates has not asked for that remedy and even though, after remand, Bates may end up being required to serve a longer sentence.

6. On page 18, the first full paragraph is deleted and replaced with the following paragraph, which includes new footnote 12:

Here, because of its apparent belief that section 654 required it to stay execution of the six-year sentence, the trial court erred in staying it. Thus, we will remand for the trial court to decide how to proceed with respect to the six-year sentence.¹²

¹² For the first time in a petition for rehearing, Bates raises a different challenge to the six-year sentence, claiming that it should not have been imposed in the first place. He argues that because the trial court imposed an aggregate sentence for his convictions in the two separate trials, the trial court was required, under section 1170.1 and People v. Tassel (1984) 36 Cal.3d 77, 91, to impose an enhancement for the six prior prison terms only once as part of the aggregate sentence. This argument was not within the scope of issues presented in Bates's appeal. In fact, it is directly contrary to the assumption made throughout Bates's appellate briefing i.e., that the trial court was authorized to impose six-year sentence, but that, according to case law, the trial court did not have the option to stay the sentence, and instead had to strike the sentence if it did not want Bates to serve it. Further, Bates's new challenge to his sentence has not been briefed by the Attorney General. We thus conclude that the issue is not properly raised for the first time in a petition for rehearing, and we will not address it as part of this appeal. However, because the trial court has the power, at any time, to correct an unauthorized sentence (Benton, supra, 100 Cal.App.3d at p. 102), Bates may, on remand, raise the issue for the trial court to consider as it determines how to proceed with respect to the six-year sentence. Nothing in this opinion should be read as foreclosing the trial court from considering whether, pursuant to section 1170.1, a six-year enhancement for Bates's prior prison terms should only be imposed once as part the sentence for his convictions in this case and case SCD178150.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

HALLER, Acting P. J.

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