Opinion
E080384
12-18-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY ARMENDAREZ, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kathryn A. Kirschbaum, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB20001557, Cheryl C. Kersey, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kathryn A. Kirschbaum, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
A jury convicted defendant and appellant Anthony Ray Armendarez, Jr., of several theft counts. The trial court found he had two prior serious felony convictions (Pen. Code, § 667, subd. (a)) and prior strike convictions (§§ 1170.12, 667, subds. (b)-(e).) The court also found he had violated the terms of his probation from a previous narcotics case and revoked probation. The court imposed a single sentence for both cases, consisting of eight years for the narcotics case, plus a consecutive term totaling four years for three felony counts (counts 4, 5, and 6) in this case. The court also imposed and stayed a 90-day term for a misdemeanor count (count 1) in this case.
Undesignated statutory references are to the Penal Code.
We addressed Armendarez's appeal from the narcotics case, case number FSB17004299, in an unpublished opinion. (People v. Armendarez (Nov. 13, 2023, E079166) [nonpub. opn.].) We ordered the judgment reversed and remanded with instructions.
Armendarez, representing himself, filed a notice of appeal for this case that was separate from the notice of appeal challenging the sentence in the narcotics case. The notice of appeal here, though, was untimely. He was sentenced on September 9, 2022. His notice of appeal was not filed until December 13, 2022, 96 days after the pronouncement of judgment. As such, we have no jurisdiction to consider the merits of this appeal. (In re Chavez (2003) 30 Cal.4th 643, 650 ["'An untimely notice of appeal is "wholly ineffectual"'"].)
Armendarez may have erroneously counted the 60 days he had to file his notice of appeal from October 14, 2022, the date of a postjudgment hearing on calculation of his custody credits.
Armendarez urges us to exercise our discretion to "treat [his] untimely appeal as a petition for writ of habeas corpus." (People v. Byron (2009) 170 Cal.App.4th 657, 666.) It appears, however, that our doing so is unnecessary for Armendarez to receive the relief he seeks. He argues, and the People agree, that the trial court should not have stayed the 90-day sentence for his count 1 misdemeanor, and it instead should have run that term concurrently with his felony sentence. Because he has received a sentencing remand in the narcotics case, whether that sentence is concurrent or consecutive to any part of the sentence here is encompassed in that resentencing. Armendarez may seek a fully concurrent sentence when he is resentenced on remand from his earlier appeal. "A person sentenced for convictions in multiple cases receives a single sentence." (In re Bolton (2019) 40 Cal.App.5th 611, 624; see § 1170.1, subd. (a).) When part of a sentence is reversed or modified because of an ameliorative change in the law, the resentencing court has the discretion to reconsider the entire sentence scheme. (E.g., People v. Navarro (2007) 40 Cal.4th 668, 681 ["remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances"].)
Indeed, the stayed portion of the sentence here appears to be an error that he could bring to the attention of the trial court even absent a remand. (See People v. Chagolla (1984) 151 Cal.App.3d 1045, 1049 ["when the trial court pronounces a sentence which is unauthorized by the Penal Code, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court" (Italics added.)].)
Thus, there appears to be no good reason for us to treat Armendarez's untimely appeal as a writ petition.
DISPOSITION
The appeal is dismissed.
We concur: RAMIREZ P. J., FIELDS J.