Filed 1/9/18 P. v. Gago CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ZJEANNIQUE GAGO,

Defendant and Appellant.
D071143



(Super. Ct. Nos. SCD264924,
SCD247108, SCD262010)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia Meza, Judge. Affirmed.
Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.


Zjeannique Gago pleaded guilty to committing felony corporal injury on a girlfriend in the current case (Pen. Code, § 273.5; case No. SCD264924). The court sentenced him to a total of six years in prison as follows: the low term of two years doubled because of his prior strike; plus a consecutive 16-month term for a prior first degree residential burglary conviction (§§ 459, 460.1; case No. SCD247108); plus a consecutive eight-month term for a prior conviction for possession of a firearm as a felon (§ 29800, subd. (a)(1); case No. SCD262010). Gago contends the court erroneously believed consecutive sentences were mandatory for the two prior convictions under section 667, subdivision (c)(6), when in fact concurrent sentences were required for those prior convictions. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We take the relevant facts from the probation report. We do not elaborate on the underlying crimes as the details are not necessary for our resolution of this appeal.
In April 2013, Gago pleaded guilty to first degree burglary in violation of sections 459 and 460.1 in case No. SCD247108. He admitted entering a residence with the intent to steal money and guns. He was placed on probation for three years.
In July 2015, Gago pleaded guilty to being a felon in possession of a firearm in violation of section 29800, subdivision (a)(1) in case No. SCD262010. The firearm was reported stolen during an April 2015 residential burglary.
In October 2015, the court revoked Gago's probation in case No. SCD247108 and sentenced him to three years in state prison in case Nos. SCD247108 and SCD262010 comprising of the upper term of three years for possession of a firearm by a felon, and a concurrent two-year low term for the burglary conviction.
In 2016, while Gago was in custody for his prior convictions, the People filed an eight-count information in the current case, charging him with three counts of making a criminal threat (§ 422), one count each of battery of a current or former significant other (§ 243, subd. (e)(1)), robbery (§ 211), vandalism over $400 (§ 594, subd. (a)(b)(1)), battery (§ 242), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information alleged that Gago committed each offense while he was released from custody on bail (§ 12022.1, subd. (b)).
In plea bargain negotiations in the current case, the People proposed that Gago plead guilty to a separate count of willful infliction of corporal injury, which was based on a September 23, 2015 incident in which he grabbed the victim by the hair and punched her three times in the chest. The People clarified that the new count would not be a strike conviction for purposes of future penalty and punishment; however, several of the complaint's other counts would be eligible for strike convictions. The People proposed a total six-year prison sentence: four-years for corporal injury (the low term doubled because of Gago's strike) and resentencing on the two prior convictions cases at "one-third the midterm . . . . [F]or the burglary, he would serve one year, four months consecutive, and for . . . possession of firearm by a felon would serve eight months consecutive for a total term of two years." (Italics added.) In exchange, the People offered to dismiss the eight felony counts. They represented that if Gago did not accept the offer, he faced a maximum exposure of 31 years in prison.
Gago accepted the People's offer and pleaded guilty to corporal injury in
the current case. He also admitted that he had suffered a prior strike in case No.
SCD247108. (§§ 667, subds. (b)-(i); 668; 1170.12.) The plea agreement stated Gago would be sentenced to a four-year term on the corporal injury conviction and resentenced on the prior convictions, without specifying what criteria the court would use for that resentencing. The People represented that Gago faced a maximum exposure of 10 years in prison, which was double the upper term of the corporal injury sentence. The prosecutor stated the parties would allow the court to exercise its discretion to sentence Gago on the prior convictions concurrently or consecutively: "I think there's some competing case law or theories that both of us would like to argue at sentencing, so the plea agreement essentially is . . . that he—the sentence is going to be four years on this current case and just leave it up to the court to determine whether or not it's going to be the full two years, which would be sixteen months plus eight months consecutive for both of those charges that he's serving prison on, or if the court is going to consider running those two charges concurrent and making it just sixteen months added to the four years, or if the court is going to consider possibly running the whole prison sentence that he's currently serving concurrent with the current plea in its entirety."
At the August 2016 sentencing hearing, defense counsel conceded that under section 667, subdivision (c)(8), Gago's four-year sentence in the current case must be consecutive to the terms he was previously serving. However, counsel argued that the court had discretion to sentence Gago concurrently on the prior residential burglary and felon-in-possession convictions, and urged the court to do so. The People argued that the court should sentence Gago consecutively on the two prior convictions because they were separate crimes committed on separate days.
In sentencing Gago, the court stated: "I do not think that I have the discretion to impose concurrent sentences with regard to the two prior cases where [Gago] is currently serving a sentence." It added: "I think that by operation of law they all have to be consecutive. [¶] But even if the court did have discretion, I think under the circumstances of this case, because they are separate crimes committed on [] separate days, concurrent sentencing as between the two prior cases is not appropriate." The court therefore sentenced Gago to state prison for a term of six years.
DISCUSSION
Gago contends the court erroneously sentenced him to a six-year term by imposing consecutive terms on his prior offenses; instead, it should have imposed a five-year four-month term by sentencing him concurrently on his prior offenses. Arguing that section 667, subdivision (c)(6), mandates consecutive terms only where there is "a current conviction for more than one felony count not committed on the same occasion," he points out that his "current conviction" is for the corporal injury offense alone and does not include the 2013 burglary or the 2015 firearm possession incidents. He further contends that his prior convictions did not involve the admission of a prior felony strike; therefore, they were not subject to section 667, subdivision (c)(6)'s consecutive sentencing requirement. Finally, acknowledging the record is silent on whether in 2015 the court made a discretionary choice of concurrent terms, he nonetheless contends that if the court did so, then in this case the court must impose concurrent sentences on the prior offenses. He relies on California Rules of Court, rule 4.452(3), which states that when a court imposes sentence in a current case and aggregates it with the sentence in prior cases, "[d]iscretionary decisions of the judges in the previous cases may not be changed by the judge in the current case. Such decisions include . . . making counts in prior cases concurrent with or consecutive to each other."
The starting point for our analysis is that Gago voluntarily agreed to the plea bargain after full advisement of his constitutional rights. The principles applicable to enforcement of plea agreements are well-established, as the California Supreme Court explained in People v. Segura (2008) 44 Cal.4th 921, 931-935. Gago obtained the benefit of his bargain as he pleaded guilty to one count, and in return, the People dismissed eight charges against Gago. He was sentenced to a total of six years as set forth in the plea negotiations with the People, which is lower than the maximum exposure of 10-years that he faced under the plea agreement.
The parties stipulated that the court would exercise its discretion to decide whether to sentence Gago on his prior offenses concurrently or consecutively. We conclude that the court did not abuse its discretion in imposing consecutive sentences. It was guided by the criteria set forth in rule 4.425, which considers, among other things, whether the crimes were predominantly independent of each other, whether they involved separate acts of violence or threats of violence, whether they were committed at different times or separate places, and whether any factors in aggravation existed to warrant a consecutive sentence. (People v. Deloza (1998) 18 Cal.4th 585, 596, fn. 8.) Gago's sentence was permissible under the criteria found in rule 4.425. His prior convictions were independent of each other, separate acts, and committed at different times and places.
Gago argues that rule 4.452(3), which states that "[d]iscretionary decisions of the judges in the previous cases may not be changed by the judge in the current case," barred consecutive sentences on his prior convictions. However, this rule's use notes provide: "The restrictions of subdivision (3) do not apply to circumstances where a previously imposed base term is made a consecutive term on resentencing. If the judge selects a consecutive sentence structure, and since there can be only one principal term in the final aggregate sentence, if a previously imposed full base term becomes a subordinate consecutive term, the new consecutive term normally will become one-third the middle term by operation of law (section 1170.1 (a))." Here, the court selected the current corporal injury conviction as the principal term and designated Gago's prior convictions as consecutive terms. Therefore, the court did not run afoul of rule 4.452(3).
Only when the record shows that the trial court misunderstood the scope of its discretion to impose concurrent sentences is remand for resentencing required. (Id. at
p. 600.) Also, even if the court did not know it had discretion, we will not reverse if "the exercise of such discretion in the defendant's favor was not a realistic possibility." (People Fuhrman (1997) 16 Cal.4th 930, 945.)
We need not address Gago's other arguments because, on this record, the trial court would not likely sentence Gago differently if we were to remand the matter. It specifically stated that even if consecutive terms were not mandated, it would elect to exercise its discretion and sentence him consecutively. Under these circumstances, we consider it virtually certain the court would impose the same consecutive sentences if we remanded the matter. (See People v. Bravot (1986) 183 Cal.App.3d 93, 98.) Consequently, we decline to do so.










DISPOSITION
The judgment is affirmed.


O'ROURKE, J.

WE CONCUR:



McCONNELL, P. J.



NARES, J.