P. v. Garcia

Filed 4/6/07 P. v. Garcia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,
George Genesta, Judge. Affirmed in part, vacated in part, and remanded for further proceedings.

William M. Duncan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant Frank Joseph Garcia appeals from the judgment entered following a jury trial that resulted in his conviction for petty theft with a prior conviction (Pen. Code, 666.)[1] Garcia had previously pleaded guilty to possession of methamphetamine and had been granted deferred entry of judgment. The deferred entry of judgment was terminated due to Garcias commission of the petty theft. Garcia was sentenced to a prison term of five years, four months for both convictions.

Garcia contends his sentence must be vacated because the trial court erroneously believed it was required to impose consecutive sentences on the two convictions. We agree. We affirm the judgment of conviction, but vacate the sentence and remand for resentencing.

PROCEDURAL BACKGROUND

On August 19, 2005, in case No. KA071977, Garcia pleaded guilty to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and admitted suffering a prior strike conviction ( 667, subds. (b) (i), 1170.12, subds. (a) (d).) Garcia was granted deferred entry of judgment, and various requirements were imposed as conditions of Garcias participation in the program.

On October 1, 2005, Garcia stole batteries from a WalMart store. As a result he was charged, in case No. KA072525, with petty theft with a prior ( 666).[2]On October 7, 2005, deferred entry of judgment in case No. KA071977 was terminated and Garcia was adjudged to be in violation of the terms of the deferred entry program. The trial courts October 7 minute order reflects that Garcia was convicted of the drug possession charge. On November 9, 2005, a diversion termination hearing was conducted and Garcia was found formally in violation of deferred entry of judgment.

After a jury trial, on February 3, 2006, Garcia was convicted of petty theft with a prior in case No. KA072525. In a bifurcated proceeding, the trial court found Garcia had suffered a prior strike conviction.[3] The trial court denied Garcias Romero motion[4] and his motion to reduce the petty theft conviction to a misdemeanor. It sentenced Garcia to a term of five years and four months, consisting of two years for the petty theft conviction and a consecutive term of eight months for the possession of methamphetamine conviction in case No. KA072525, each doubled pursuant to the three strikes law. It further imposed a restitution fine, a suspended parole revocation fine, a laboratory fee, and a court security fee. Garcia appeals.

DISCUSSION

a. Consecutive sentences were not required by the three strikes law.

The three strikes law is a comprehensive, integrated sentencing scheme that applies to all cases coming within its terms. (People v. Casper(2004) 33 Cal.4th 38, 41.) Section 667, subdivisions (c)(6) and (c)(7) require that the court impose consecutive sentences whenever a defendant with one or more qualifying prior convictions is convicted . . . of multiple serious or violent felonies not committed on the same occasion, and not arising from the same set of operative facts. [Citations.] (Id. at p. 42, fn. omitted.) When subdivision (c)(6) or (c)(7) applies, a judge has discretion to impose concurrent sentences only when the current felony convictions were committed on the same occasion or arose from the same set of operative facts. (People v. Casper, supra, at p. 42; People v. Hendrix (1997) 16 Cal.4th 508, 512-513.) Additionally, section 667, subdivision (c)(8) requires that any sentence imposed pursuant to the three strikes law must be consecutive to any other sentence the defendant is already serving.

The People contend that, under section 667, subdivision (c)(6), the trial court was required to impose consecutive sentences on Garcias drug and petty theft convictions. That section provides in pertinent part, If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . . (Italics added.) The People contend that Garcias 2005 conviction for possession of methamphetamine constituted a current conviction within the meaning of sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6), because entry of judgment and sentencing for the conviction had been deferred until the sentencing hearing for both cases. Resolution of this question turns on when Garcia was convicted of possession of methamphetamine.

As noted, Garcia pleaded guilty to possession of methamphetamine on August 19, 2005. He was granted deferred entry of judgment pursuant to section 1000.1 et seq.  [S]ections 1000 to 1000.4 . . . authorize the courts to divert from the normal criminal process persons who are formally charged with first-time possession of drugs, have not yet gone to trial, and are found to be suitable for treatment and rehabilitation at the local level. [Citation.] If the defendant is found suitable, pleads guilty to the charges, and waives time for trial, entry of judgment is deferred for the duration of the program. [Citations.] If the defendant completes the program successfully, the charges are dismissed. (People v. Popular (2006) 146 Cal.App.4th 479, 483.)

Under the deferred entry of judgment statutes, Garcia was not convicted of the offense on the date he pleaded. Section 1000.1, subdivision (d) provides, A defendants plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3. (Italics added.) Section 1000.3 provides, in pertinent part, If it appears to the prosecuting attorney, the court, or the probation department that the defendant is performing unsatisfactorily in the assigned program, . . . or the defendant is convicted of a felony, or the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment. [] After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered. [] If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a crime as indicated above, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code. (Italics added.)

Here, the trial courts minute order reflects that deferred entry of judgment was terminated on October 7, 2005, and Garcia was convicted of the drug possession offense on that date. The diversion termination hearing was held on November 9, 2005, concurrently with the preliminary hearing on the instant petty theft offense. The minute order for November 9 reflects that Garcia was found formally in violation of deferred entry of judgment. Deferred entry of judgment remains terminated.

Thus, despite the Peoples contention that judgment was not entered until the sentencing hearing, it appears Garcia was convicted of methamphetamine possession at least by November 9, 2005. Under these circumstances, the 2005 drug possession conviction was not a current conviction for purposes of section 667, subdivision (c)(6). People v. Rosbury (1997) 15 Cal.4th 206, is instructive. In Rosbury, the defendant suffered a 1993 conviction for robbery. While on probation for that conviction, he committed an attempted robbery and was convicted in 1994. (Id. at p. 208.) The trial court revoked the defendants probation on the 1993 case and imposed concurrent sentences for the 1993 and 1994 convictions. The Court of Appeal concluded section 667, subdivision (c)(7) required that sentence on the two convictions run consecutively. (Id. at p. 209.)

The California Supreme Court disagreed. It rejected the view that the 1993 conviction could be characterized as a current conviction for purposes of section 667, subdivision (c)(7). (People v. Rosbury, supra, 15 Cal.4th at pp. 209-210.) The prosecutions pleading and proof alleged the 1993 conviction as a prior conviction, not a current offense, and the defendant was not convicted of the 1993 offense during the proceeding in which he was convicted of the 1994 offense. (Ibid.) [B]y equating the imposition of sentence following his probation violation with a current conviction, the Court of Appeal erred. (Id. at p. 209.)

Although Rosbury addressed the applicability of subdivision (c)(7) rather than (c)(6), and concerned a defendant on probation rather than a deferred entry of judgment, its analysis regarding what constitutes a current conviction is directly on point here. Deferred entry of judgment was terminated, and Garcia was convicted of methamphetamine possession, at least by November 9, 2005. Thus, Garcia had already been convicted of methamphetamine possession before trial in the petty theft case began. The methamphetamine possession offense was not adjudicated at the same trial as the petty theft offense. For purposes of section 667, subdivision (c)(6), there was only one current conviction, i.e., petty theft with a prior. The imposition of sentence following termination of the deferred entry of judgment was not the equivalent of a current conviction. (Cf. People v. Rosbury, supra, 15 Cal.4th at p. 209.) Subdivision (c)(6) did not require the imposition of consecutive sentences.

Nor do subdivisions (c)(7) or (c)(8) apply to mandate consecutive sentences. Section 667, subdivision (c)(7) provides, If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced . . . . Subdivision (c)(7) is inapplicable because neither possession of methamphetamine nor petty theft with a prior are serious felonies under section 1192.7 or violent felonies under section 667.5. (See  1192.7, subd. (c) [defining serious felonies] and 667.5, subd. (c) [defining violent felonies].)

Likewise, section 667, subdivision (c)(8) is inapplicable. That section provides, Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law. Garcia, however, was not serving another sentence at the time he was sentenced for the petty theft. (Cf. People v. Rosbury, supra, 15 Cal.4th at p. 211 [being on probation, defendant was not already serving his sentence for purposes of section 667, subdivision (c)(8)].) As noted, deferred entry of judgment in case No. KA071977 was terminated prior to Garcias petty theft conviction and Garcia was not sentenced on the drug possession conviction until sentencing in the instant matter. Therefore, Garcia was not already serving a sentence for purposes of section 667, subdivision (c)(8). (People v. Rosbury, supra, at pp. 210-211.)

b. Remand for resentencing is required.

Having concluded that consecutive sentences were not required by the three strikes law, we next consider Garcias contention that the trial court incorrectly believed it lacked discretion to impose concurrent sentences. We agree that remand is necessary so the trial court may exercise its discretion.

Section 669 provides that whenever a person is convicted of two or more crimes, whether in the same or different proceedings, the sentencing judge must direct whether the terms of imprisonment for the offenses are to run concurrently or consecutively. If the judge fails to direct how the terms are to run, they must run concurrently. ( 669.) If the judge directs that a determinate term is to run consecutively to another term, he or she must state on the record the primary factor or factors that support the exercise of discretion. (Cal. Rules of Court, rule 4.406(b)(5).)

The governing rule of court, rule 4.425, provides that in exercising discretion whether to impose concurrent or consecutive sentences, the judge may consider any circumstances in aggravation or mitigation (see Cal. Rules of Court, rules 4.421, 4.423), except a fact that is an element of the crime or that has been used to impose the upper term or otherwise enhance the prison term. (Cal. Rules of Court, rule 4.425(b).) The judge may also consider whether the crimes and their objectives were independent of each other, whether they involved separate acts or threats of violence, and whether they were committed at different times or separate locations. (Cal. Rules of Court, rule 4.425(a).)

If the record affirmatively demonstrates the trial court was unaware of its discretion to impose concurrent sentences, or erroneously believed consecutive sentencing was mandatory, the matter should be remanded for the trial court to exercise its discretion. (People v. Deloza (1998) 18 Cal.4th 585, 600; People v. Fuhrman (1997) 16 Cal.4th 930, 944.)

Here, the record affirmatively demonstrates that the trial court erroneously believed consecutive sentences were required. When discussing the parties arguments at the sentencing hearing, the trial court stated it intended to impose the midterm on both offenses, which were required to be consecutive to each other. (Italics added.) Defense counsel, citing People v. Rosbury, supra, 15 Cal.4th 206, stated that if the trial court struck a prior conviction allegation, it could impose concurrent terms.[5] The trial court responded, So long [as] theres a strike alleged on one of the cases they have to be consecutive.

The trial courts comments demonstrate it mistakenly believed it lacked discretion to impose concurrent sentences. The proper remedy when the court misunderstands its discretion is to remand the matter to the trial court for resentencing. (People v. Deloza, supra, 18 Cal.4th at p. 600; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1263.) Accordingly, we order Garcias sentence vacated and the matter remanded so the court may exercise its discretion.

DISPOSITION

The sentence is vacated and the matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] Because the circumstances surrounding the charged crime are not relevant to our analysis of the issue raised on appeal, we do not detail them here.

[3] On the Peoples motion, the trial court dismissed a section 667.5, subdivision (b) allegation.

[4]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[5] Defense counsel was incorrect; the trial court was not required to strike a prior conviction allegation in order to impose concurrent sentences under the circumstances presented.