Filed 4/11/17 P. v. Boot CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE,

Plaintiff and Respondent,

v.

DAVID MICHAEL BOOT,

Defendant and Appellant.
D069232



(Super. Ct. No. SCD179209)

APPEAL from a judgment of the Superior Court of San Diego County, Laura A. Parsky, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
David Michael Boot appeals a judgment after the trial court resentenced him to a total term of 17 years in prison following our decision in People v. Boot (June 2, 2015, D065933) [nonpub. opn.] (Boot I), remanding the matter and directing the court to exercise its discretion in resentencing him.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, an information charged Boot with one count of committing a forcible lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)) and alleged he had suffered a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike (§§ 667, subds. (b)-(i), 1170.12, 668). At a hearing before San Diego County Superior Court Judge Frank A. Brown, Boot pleaded guilty to the section 288, subdivision (b)(1), charge and admitted the truth of the serious felony prior and prior strike allegations. At Boot's sentencing hearing, Judge Brown imposed the middle term of six years for his section 288, subdivision (b)(1), conviction, which was then doubled to 12 years based on his prior strike, and a concurrent three-year term for his 2000 conviction.
In 2014, after Boots had served 10 years in prison, the prosecution filed a motion to correct an unauthorized sentence, arguing that at his 2004 sentencing the trial court had failed to impose a mandatory five-year consecutive term for Boot's serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). Citing California Rules of Court, rule 4.452(3), the prosecution represented that the court had no discretion to increase or decrease its prior discretionary decision to impose a term of 12 years for Boot's section 288, subdivision (b)(1), conviction.
Because Judge Brown had retired since Boot's 2004 sentencing, San Diego County Superior Court Judge Laura H. Parsky heard the motion. Judge Parsky found Boot's original sentence was unauthorized and imposed an additional five-year term for the serious felony prior to run consecutive to the original 12-year term, for a total term of 17 years.
On appeal, in Boot I we concluded the trial court did not know of its discretion to reevaluate Boot's entire sentence when it imposed the additional five-year term for the serious felony prior. (Boot I, supra, at pp. 3, 7)! We vacated the court's sentence and remanded the matter with directions that it exercise its discretion and consider whether, in light of the addition of the five-year enhancement, it should leave Boot's original 12-year term intact or instead adjust that sentence as it deemed appropriate. (Id. at p. 8)!
On remand, the prosecution filed a sentencing memorandum, which attached various psychological evaluations from Boot's original sentencing proceedings and requested that the court impose a total term of 17 years. Boot filed a statement in mitigation and memorandum of points and authorities requesting that the court impose a total term of 12 years as Judge Brown originally imposed. The prosecution responded to Boot's statement in mitigation, arguing, inter alia, that he was not entitled to be resentenced by the same trial judge (i.e., Judge Brown) pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 because Judge Brown had retired since Boot's original sentencing in 2004. It cited People v. Dunn (1986) 176 Cal.App.3d 572 in support of its position.
On November 12, 2015, the trial court (Judge Parsky) stated that it was "making explicit that it understands that it has discretion to review the defendant's entire sentence and to impose a proper sentence considering all the relevant factors." The court stated it had "taken the time to review all the materials submitted, to get the most complete picture possible of Mr. Boot, of the offense, of the other factors that are relevant to the sentencing, and the court is also considering some of the equities that have been raised by [Boot's counsel]." The court then imposed the middle term of six years for Boot's section 288, subdivision (b)(1), conviction, which it doubled to 12 years based on his prior strike, and a consecutive, five-year enhancement for his serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), for a total term of 17 years. Boot timely filed a notice of appeal and an amended notice of appeal.
DISCUSSION
Boot's appointed counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal of the judgment, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. To assist our review, counsel cites Anders v. California, supra, 386 U.S. 738 and raises the question of whether Judge Parsky was required to exercise her discretion to impose a sentence that honored Judge Brown's original intention to sentence Boot to a term of 12 years.
We granted Boot permission to file a supplemental brief on his own behalf, but he has not responded. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Boot has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.



AARON, J.

WE CONCUR:




McCONNELL, P. J.




DATO, J.