P. v. Rosel

 

 

 

 

 

 

 

 

 

 

 

 

Filed 7/29/13  P. v. Rosel CA4/3

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   MAURILLO IVAN ROSEL, JR.,         Defendant and Appellant.

G047003            (Super. Ct. No. 07NF2702)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Jonathan S. Fish, Judge.  Reversed in part and affirmed as modified.

                        William D. Farber, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Lynne G. McGinnis and Lilia E. Garcia, Deputy
Attorneys General, for Plaintiff and Respondent.

                        On this appeal after
remand, defendant Maurillo Ivan Rosel, Jr., raises a number of href="http://www.fearnotlaw.com/">sentencing errors.  The Attorney General concedes two of the
three errors, and as we shall discuss below, we accept the concessions and
shall modify the judgment accordingly.  As to the third error, defendant’s sentence on
one count of street terrorism (Pen. Code, § 186.22, subd. (a)),href="#_ftn1" name="_ftnref1" title="">[1] the Attorney General correctly contends that
a California Supreme Court decision requires reversal of that count
altogether.  We agree and order
defendant’s conviction on that count reversed. 


I

FACTS

                        In 2009,
defendant was convicted of second degree
robbery (§§ 211/215.5, subd. (c)), with enhancements for the personal
use of a firearm (§ 12022.53, subd. (b)), and for committing the crime for the
benefit of a street gang (§ 186.22, subd. (b)(1)), count one).  He was also convicted of misdemeanor battery
on a peace officer without injury (§ 243, subd. b, count two), as a lesser
included offense of felony battery on a peace officer (§ 243, subd. (c)(2)); of
active participation in a street gang (§ 186.22, subd. (a), count three); and
misdemeanor escape after arrest (§ 836.6, subd. (b), count four).  His original sentence was 22 years.  In People
v. Rosel (Jan. 26, 2012, G044481)
[nonpub. opn.], we reversed the gang enhancement for a lack of substantial
evidence and affirmed the judgment in all other respects. 

                        Defendant
was resentenced on June 1, 2012.  The
court vacated the 10-year sentence on the gang enhancement, and resentenced
defendant to the low term of two years for the robbery in count one, and a
10-year consecutive sentence for the firearm enhancement.  The court imposed concurrent terms of one
year and four months each on counts two and three, and stayed sentence on count
four.  The
total term after sentencing on remand was 12 years in state prison.  Defendant now appeals.

II

DISCUSSION

Sentence on Count Two

                        Defendant
was originally charged with the felony offense of battery on a peace officer
with injury under section 243, subdivision (c)(2).  The jury convicted defendant of the lesser
included offense of misdemeanor battery on a peace officer without injury (§
243, subd. (b).)  At the resentencing
hearing, the court imposed a sentence of one year and four months on this
count.  Defendant argues, and the
Attorney General concedes, that this sentence was unauthorized.   

                        We
agree with the parties.  “[A] sentence is
generally ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case. . . . [L]egal error resulting in an
unauthorized sentence commonly occurs where the court violates mandatory
provisions governing the length of confinement.”  (People
v. Scott (1994) 9 Cal.4th 331, 354, fn.omitted.)  Section 243, subdivision (b), states the
offense “is punishable by a fine not exceeding two thousand dollars ($2,000),
or by imprisonment in a county jail not exceeding one year, or by both that
fine and imprisonment.”  Because the
maximum length of confinement was one year, a sentence of one year and four
months is unauthorized.  We therefore
reduce the sentence on that count to one year rather than one year and four
months, to be served concurrent to count one as ordered by the href="http://www.fearnotlaw.com/">trial court.

                        Defendant
also points out that the abstract of judgment incorrectly lists the statute he
was convicted under as section 243, subdivision (c)(2), when he was actually

convicted under section 243, subdivision (b).  The Attorney General appears to agree,

describing the offense of which defendant was convicted as a violation
of section 243, subdivision (b).  The
parties are correct.  “It is
undisputed that battery
without injury on a deputy probation officer in violation of section 243,
subdivision (b), is a lesser misdemeanor offense necessarily included within
the charged felony offense of battery with injury on a [peace] officer in
violation of section 243, subdivision (c)(1).” 
(People v. Hayes (2006) 142
Cal.App.4th 175, 180, fn. omitted.)  “Subdivision (c)(2) applies when a battery
with injury is committed against a peace officer.”  (Id.
at p. 180, fn. 3.)  We shall order
the judgment and the abstract of judgment modified accordingly.

 

Sentence on Count Three

                        Defendant
initially argued that his sentence on the street
terrorism count should have been stayed pursuant to section 654.  His opening brief, however, was filed before the Supreme Court
decided People v. Rodriguez (2012) 55
Cal.4th 1125, 1130 (Rodriguez).)  The Attorney General’s brief, filed after> Rodriguez was decided, contended the
section 654 argument was moot because there was insufficient evidence to
support the conviction at all. 
Defendant, in his reply brief, agreed, and we concur.

                        >Rodriguez held that a gang member
does not violate section 186.22, subdivision (a) if he or she “commits a
felony, but acts alone[.]”  (>Rodriguez, supra,
55 Cal.4th at p. 1128.)  In
order to violate section 186.22, subdivision (a), the requisite “felonious
criminal conduct” (§ 186.22, subd. (a)) must “be committed by at least two gang
members.”  (Id. at p. 1132.)  The defendant in Rodriguez was
a gang member who committed an attempted robbery. “There was no evidence that
[the] defendant acted with anyone else.” 
(Rodriguez, supra,
55 Cal.4th at p. 1129.) He contended that he could not

be convicted of violating
section 186.22, subdivision (a) because he did not “promote[], further[], or
assist[]” any felonious criminal conduct by members of the gang.  (§ 186.22,

subd. (a).)  The California Supreme Court agreed, holding
that the plain meaning of the word “members” mandates that “felonious criminal
conduct be committed by at least two gang members, one of whom can include the defendant
if he [or she] is a gang member. 
[Citation.]”  (Id.
at p. 1132.)

                        Here,
defendant was not alone at the time of the robbery — he was a passenger in a
car driven by another individual.  (>People v. Rosel, supra, G044481.)  The Attorney General concedes the identity of
the second person was never established at trial.  Without proof that the robbery was “committed
by at least two gang members”  (>Rodriguez, supra,
55 Cal.4th at p. 1132) there is insufficient evidence to support
defendant’s conviction on count three, and it must be reversed.

 

Correction of the Abstract of
Judgment

                        Defendant’s
final argument is that the abstract of judgment inaccurately lists his
misdemeanor convictions on counts two and four as felonies.  He requests correction, and the Attorney
General has no objection.  As these
offenses are both misdemeanors (§ 243, subd. (b), § 836.6, subd. (b)), the
abstract should be corrected to reflect this. 
(See People v. Kim (2012) 212
Cal.App.4th 117, 123-124 [“courts have inherent authority to correct clerical
errors in a sentence at any time”].) 

III

DISPOSITION

                        It is
ordered that:  1) Defendant’s conviction
on count three is reversed; 2) defendant’s sentence on count two is reduced to
one year; 3) the judgment and abstract of judgment are ordered modified to reflect
that defendant’s conviction on count two is a conviction under section 243,
subdivision (b); and 4) the abstract of judgment is ordered corrected to
reflect that counts two and four are misdemeanors. 

                        The trial
court is directed to issue a new abstract of judgment reflecting these
modifications and corrections and to forward a copy to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.  In all other respects, the judgment is
affirmed.

 

 

 

                                                                                   

                                                                                    MOORE,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P. J.

 

 

 

BEDSWORTH, J.