P. v. Nawabi

Filed 10/10/06 P. v. Nawabi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

AHMAD KHALID NAWABI,

Defendant and Appellant.

G036494

(Super. Ct. No. 03HF0123)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Reversed.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

This court issued an opinion which affirmed the judgment of conviction of defendant Ahmad Khalid Nawabi but reversed his sentence due to legal error. (People v. Nawabi (June 16, 2005, G034382) [nonpub. opn.].) The matter was remanded to the superior court for resentencing. On November 18, 2005, the trial court resentenced defendant without error. But on March 28, 2006, defendant was brought back to court and was again resentenced because the trial court was under the misimpression it had done something wrong. Although the most recent resentence did not punish defendant for the same crime twice, as the original sentence did, it otherwise improperly sentenced defendant to the sentence we previously reversed.

The trial court tried three times to sentence defendant to five years in prison. After exercising its discretion three times, the court made it clear it wants to sentence defendant to five years in prison. We see no reason to remand again as no further discretionary decisions are required. The sentence the trial court imposed in November 2005 is a legal sentence and we can do it with a stroke of the pen. Instead of remanding again, we now correct it ourselves. (People v. Scott (1994) 9 Cal.4th 331, 354-355.)

The clerk of the court is ordered to amend the abstract of judgment to state defendant is sentenced to the low term of two years in prison on count two, violation for Penal Code section 245, subdivision (a)(1). The great bodily injury enhancement imposed under Penal Code section 12022.7 is imposed. Imposition of sentence on count one for violation of section 243, subdivision (d) is stayed pursuant to Penal Code section 654.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

BEDSWORTH, J.

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Description	This court issued an opinion which affirmed the judgment of conviction of defendant but reversed his sentence due to legal error. The matter was remanded to the superior court for resentencing. The trial court resentenced defendant without error. Defendant was brought back to court and was again resentenced because the trial court was under the misimpression it had done something wrong. Although the most recent resentence did not punish defendant for the same crime twice, as the original sentence did, it otherwise improperly sentenced defendant to the sentence court previously reversed. The trial court tried three times to sentence defendant to five years in prison. After exercising its discretion three times, the court made it clear it wants to sentence defendant to five years in prison. Court sees no reason to remand again as no further discretionary decisions are required. The sentence the trial court imposed is a legal sentence. Instead of remanding again, court corrected it.
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