Opinion
F086403
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE LOUIE FARIAS, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF161674A. John R. Brownlee, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
This matter returns to us for a second time following remand. We previously remanded the matter for resentencing in light of then newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.), (People v. Farias (Mar. 4, 2019, F076339) [nonpub. opn.]), and again because appellant was not present during his resentencing hearing (People v. Farias (Oct. 17, 2022, F082811) [nonpub. opn.]).
This appeal is taken from appellant's most recent resentencing. Appellant contends, and respondent agrees, that the trial court lacked authority under Penal Codesection 1385, subdivision (a) (section 1385(a)) to stay the five-year sentence for one of appellant's prior serious felony enhancements (§ 667, subd. (a)), rather than striking it outright.
All further statutory references are to the Penal Code unless otherwise indicated.
This contention appears to be based on a misreading of the record. The trial court stayed the enhancement pursuant to section 654, subdivision (a) (section 654(a)), not section 1385(a). We conclude the trial court properly stayed the enhancement, because it also stayed the sentence for the substantive offense to which the enhancement was attached pursuant to section 654(a). (People v. Tua (2018) 18 Cal.App.5th 1136, 1143.) We affirm.
BACKGROUND
In 2016, the Kern County District Attorney's Office filed an amended information charging appellant with three counts of oral copulation or sexual penetration of a minor 10 years of age or younger (§ 288.7, subd. (b); counts 1, 2, and 3) and one count of continuous sexual abuse of a child (§ 288.5, subd. (a); count 4). The information also alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and, as to each count, a prior serious felony enhancement (§ 667(a)).
Appellant pleaded no contest to counts 1, 2 and 3, and guilty to count 4, and admitted the prior strike enhancement and prior serious felony enhancements. At his initial sentencing hearing, the trial court denied appellant's request to dismiss his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court then sentenced appellant to 90 years to life plus 44 years in state prison as follows. As to counts 1, 2, and 3, the court imposed a sentence of 15 years to life, doubled for the prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), for a total of 30 years to life on each count, to be served consecutively. As to count 4, the court imposed the middle term of 12 years, doubled to 24 years for the prior strike, to be served consecutively. The court also imposed an additional five-year sentence for each of the four prior serious felony enhancements, for a total of 20 years, to be served consecutively.
In his first appeal to this court, appellant challenged the trial court's denial of his Romero motion. We held the denial was not an abuse of discretion. (People v. Farias, supra, F076339.) However, while the appeal was pending, the Legislature enacted Senate Bill No. 1393, which gave trial courts discretion to strike prior serious felony enhancements pursuant to section 1385(a). We vacated appellant's sentence and remanded the matter for resentencing in light of the new enactment. (People v. Farias, supra, F076339.)
Following remand, appellant filed a motion requesting the trial court strike his prior serious felony enhancements. The trial court denied the motion and reimposed the previous sentence of 90 years to life plus 44 years. (People v. Farias, supra, F082811.)
In his second appeal to this court, appellant contended the trial court violated his right to be personally present at his resentencing. We agreed. We again vacated his sentence and remanded the matter for another resentencing hearing. (People v. Farias, supra, F082811.)
At appellant's second resentencing hearing, appellant filed another motion to strike the prior serious felony enhancements pursuant to section 1385(a). In support of the motion, appellant submitted prison records detailing his efforts at rehabilitation through counseling, therapy, and education.
The trial court granted the motion to strike the prior serious felony enhancements as to counts 1, 2, and 3. The court then resentenced appellant to a total of 90 years to life on counts 1, 2, and 3. On count 4, the court imposed a determinate sentence of 24 years, but stayed it pursuant to section 654(a). The court also stayed the five-year term for the prior serious felony enhancement on count 4 pursuant to section 654(a).
DISCUSSION
I. The trial court properly stayed the prior serious felony enhancement as to count 4 pursuant to section 654(a).
Appellant contends, and respondent agrees, that the trial court lacked the authority under section 1385(a) to stay the prior serious felony enhancement as to count 4. They note that the plain language of section 1385 only authorizes a trial court to "strike or dismiss," rather than stay, an enhancement in the interests of justice. (§ 1385, subd. (b)(1).) In their view, the trial court's ruling suggests that it did not intent to punish appellant with an additional five-year term as to count 4. Thus, they ask that we exercise our authority under section 1260 to order the enhancement stricken.
We agree with the parties' reading of section 1385(a). However, it is clear from the record that the trial court stayed the prior serious felony enhancement as to count 4 pursuant to section 654(a), not section 1385(a). In ruling on appellant's motion, the court stated: "[Y]our motion to strike the 667(a) five-year priors as to Counts 1, 2, and 3 will be granted. [¶] As to Count 4, that five years will be stayed." Later, after imposing the determinate sentence of 24 years on count 4, the court explained: "That sentence to be enhanced by five years, pursuant to Section 667(a) of the Penal Code. However, that punishment will be stayed, pursuant to Section 654 of the Penal Code." The minute order from the resentencing hearing also states that count 4 and the associated prior serious felony enhancement was "STAYED PURSUANT TO PC 654."
Under these circumstances, staying the prior serious felony enhancement as to count 4 pursuant to section 654(a) was proper. "[W]here the trial court is required to stay a determinate sentence under section 654 … the prior serious felony enhancement that attaches to those determinate counts must also be stayed." (People v. Tua, supra, 18 Cal.App.5th at p. 1143; see People v. Guilford (1984) 151 Cal.App.3d 406, 411 [an enhancement must be stayed if the associated substantive offense must also be stayed].) Here, the trial court imposed a determinate sentence on count 4 and stayed it pursuant to section 654(a). Thus, its order staying the associated prior serious felony enhancement pursuant to section 654(a) was proper. Indeed, it was obligated to do so.
Respondent observes the amended determinate abstract of judgment does not include the prior serious felony enhancement as to count 4. We agree that this error must be corrected. We direct the trial court to prepare an amended determinate abstract of judgment reflecting that the enhancement was imposed and stayed.
In sum, appellant's claim is based on a misreading of the record. While we agree with the principle that a trial court does not have the authority to stay an enhancement under section 1385(a), that is not what happened here. In staying the substantive offense on count 4 pursuant to section 654(a), the trial court was required to stay the associated prior serious felony enhancement. Therefore, we conclude appellant was properly sentenced, and this claim lacks merit.
DISPOSITION
The trial court is directed to prepare an amended determinate abstract of judgment reflecting that the prior serious felony enhancement (§ 667(a)) as to count 4 was imposed and stayed pursuant to section 654(a), and to forward said amended determinate abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
[*] Before Poochigian, Acting P. J., Meehan, J. and De Santos, J.