Opinion
C041719.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD DON BROWN, Defendant and Appellant.
Pursuant to a negotiated agreement, defendant Edward Don Brown pleaded no contest to count 2, assaulting a peace officer with use of a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.53, subd. (b), 12022.5, subd. (a)(1) [further unspecified references are to this code]); count 3, kidnapping with use of a firearm and infliction of great bodily injury ( §§ 207, subd. (a), 12022.53, subd. (c), 12022.7); count 4, robbery with use of a firearm ( §§ 211, 12022.53, subd. (b)); and count 5, resisting an officer with use of a firearm ( §§ 69, 12022.5, subd. (a)(1)). Count 1, kidnapping for purpose of robbery ( § 209, subd. (b)(1)), was dismissed. Defendant was promised a prison sentence not to exceed 45 years.
On appeal, defendant contends (1) the trial court erred by imposing a full 10-year term consecutive sentence for the firearm enhancement in count 2, rather than one-third of the enhancement, and (2) the trial court erred by running count 5 as a fully consecutive two-year term, rather than one-third of the middle term, and imposing a fully consecutive four-year enhancement for the middle term for the firearm enhancement in section 12022.5, subdivision (a). The People concede these errors and we accept the concession.
The sole difference between the parties is whether the case should be remanded to the trial court so that it can exercise its discretion to decide, in count 5, whether to impose one-third of either the low (three years), middle (four years), or upper term (10 years) for the firearm enhancement ( § 12022.5). The People suggest a remand "may or may not be" appropriate. Defendant acknowledges the trial courts stated intent to give defendant as much time as possible within the parameters of the plea bargain and suggests he should receive one-third the upper term of 10 years, or three years four months. We agree with defendant.
PROCEDURAL BACKGROUND
Defendant was sentenced as follows:
Count 3 — this count was selected as the base term, with the upper term of eight years on count 3, plus 20 years for the firearm use enhancement ( § 12022.53, subd. (c)), and three years for inflicting great bodily injury ( § 12022.7), for a total of 31 years;
The abstract erroneously reflects imposition of sentence under section 12022.53, subdivision (b). We shall order the abstract corrected to reflect section 12022.53, subdivision (c).
Count 4 — defendant was sentenced to the "upper term of 4 years, plus 10 years" for first degree robbery with use of a firearm (§§ 211, 12022.53, subd. (b)), concurrent to count 3;
This is judicial error. The upper term for section 211, first degree robbery of a taxicab driver, is six years, not four years. We shall modify the judgment but the abstract is correct.
Count 2 — defendant was sentenced to one-third of the six- year middle term for section 245, subdivision (d)(1), plus a full 10-year consecutive term for the firearm use enhancement (§ 12022.53, subd. (b)), consecutive to counts 3 and 4;
Count 5 — defendant was sentenced to the midterm of two years and a full term of four years for the firearm use enhancement (§ 12022.5, subd. (a)(1)), consecutive to count 3, but concurrent to count 2.
Counts 2 and 5 were specifically ordered to run concurrent to each other but consecutive to counts 3 and 4. This may be termed a "boxed" consecutive sentence. Hence, before our modification, the total consecutive time was 12 years on count 2, and six years on count 5, concurrent to each other but consecutive to count 3.
It is the miscalculation of the consecutive terms in counts 2 and 5 that gives rise to the two issues on appeal.
DISCUSSION
A. Count 2
The trial court imposed one-third of the six-year middle term for section 245, subdivision (d)(1), two years, plus a full 10-year term for firearm use. Defendant argues that the trial court illegally imposed a full consecutive term for the firearm use enhancement in count 2 ( § 12022.53, subd. (b)), because a consecutive determinate term under this statute must be calculated as one-third of the 10-year term. ( § 1170.1; People v. Moody (2002) 96 Cal.App.4th 987, 990-994.) The People concede error. We accept the concession and shall order the unauthorized sentence recalculated to reflect a consecutive term of three years four months for the firearm enhancement to count 2.
B. Count 5
The sentence for violation of section 69 in count 5 was imposed consecutive to the base term in counts 3 and 4 but concurrent to count 2. The trial court erroneously imposed the full term for section 69 (two years), instead of one-third of the base term of two years (eight months). The People concede this error and we shall order that unauthorized sentence recalculated to reflect eight months consecutive to count 3 and concurrent to count 2.
Defendant also argues that this court should order the judgment modified to reflect one-third of the upper term of 10 years for the accompanying firearm use enhancement, rather than the full midterm of four years.
People v. Sandoval (1994) 30 Cal.App.4th 1288 (Sandoval), reached the same conclusion analyzing an earlier version of section 1170.1. (Id. at p. 1302.) The relevant statutory language at that time simply directed the court to "include one-third of any enhancements imposed pursuant to Section . . . 12022.5" when imposing consecutive sentences on subordinate counts. (Sandoval, supra, at p. 1302, quoting former § 1170.1, subd. (a).) Sandoval declined to depart from the "plain meaning of the language" of section 1170.1 and concluded that the trial court could properly impose one-third of the upper term for the enhancements. (Sandoval, supra, at p. 1302.) The parties agree the reasoning of Sandoval applies here.
The People agree the trial court erred but point out that selection of the full middle term by the trial court did not necessarily reflect any exercise of discretion and suggest the case might be remanded for a hearing for the trial court to select one-third of the triad of three, four, or 10 years for the enhancement. We agree with defendant that the trial courts intention to impose maximum available time is amply supported in the record and decline to remand the case in light of defendants concession that the upper term is appropriate.
While agreeing with each other, both defendant and the People cite a 2000 opinion that was not only vacated on rehearing, but eliminated by the Supreme Court (formerly People v. Mancebo (2000) 77 Cal.App.4th 395, now People v. Mancebo (2002) 27 Cal.4th 735). Not only is the parties citation not good law, but the subsequent Supreme Court decision does not address this issue. Counsel are reminded to read cited cases.
DISPOSITION
The judgment is modified as follows:
1. Count 3 — ( § 207) is to remain as the base term of eight years. The judgment is to be corrected to show 20 years for firearm use under section 12022.53, subdivision (c), and three years for great bodily injury under section 12022.7.
Total — 31 years.
2. Count 4 — ( § 211, first degree robbery of taxicab driver), six years concurrent to count 3, plus 10 years for firearm use. ( § 12022.5.)
Total — 16 years concurrent to count 3.
3. Count 2 — ( § 245, subd. (d)(1)), two years, plus three years four months for the firearm use ( § 12022.53, subd. (b)), consecutive to count 3, but concurrent to count 5.
Total — five years four months, consecutive to count 3, and concurrent to count 5.
4. Count 5 — ( § 69), eight months consecutive, plus three years four months for firearm use under section 12022.5 (one-third the upper term of 10 years), consecutive to count 3, but concurrent to count 2.
Total — four years consecutive to count 3, but concurrent to count 2.
Defendants total aggregate sentence is now 36 years four months.
The superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.
We concur: BLEASE, Acting P.J. and NICHOLSON, J.