Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC591335, CC629776
ELIA, J.
This matter has been transferred here from the Supreme Court (S171429) with directions to vacate our previous decision and to reconsider the cause in light of People v. Soria (2010) 48 Cal.4th 58 (Soria). In our earlier opinion, we modified a judgment against appellant imposed in two separate cases. In part, we held that imposition of separate restitution fines in each case totaling more than $10,000 was unauthorized. Soria held to the contrary. We will reissue our opinion with the exception of the Soria issue.
Our discussion of the other issues raised by appellant is identical to our previous opinion in this case. We are not reconsidering the issues given that Soria does not affect them. We discuss them only because we are vacating our earlier opinion.
The parties have elected not to file supplemental briefs. (Cal. Rules of Court, rules 8.528(f), 8.200(b).) By this opinion, we vacate our previous decision.
Appellant pleaded no contest to all charges in two separate informations, one related to an assault on a peace officer with a deadly weapon and one related to a stabbing of two people in downtown San Jose. Appellant also admitted the enhancing allegations in both informations. The trial court sentenced appellant to a total state prison term of 36 years, eight months, with a consecutive term of 25-years-to-life. Appellant contends that two of the serious prior felony conviction enhancements imposed pursuant to Penal Code section 667, subdivision (a), must be stricken and that the trial court erred in imposing certain fines. We modify the judgments and affirm.
Case No. CC591335/ Assault on an Officer
On May 6, 2005, a San Jose police officer pulled up next to appellant in his vehicle and noticed "exceptionally loud music." Although appellant turned the music down, the officer stopped appellant's vehicle. When the officer walked up to appellant's vehicle, it sped away. The officer followed, saw the vehicle parked erratically, and saw appellant walking away at a "hurried pace." The officer followed appellant and ultimately apprehended him after appellant took a combative stance and was tasered and hit with the officer's baton. Appellant threw something at the officer who had to duck, and the officer later determined that it was a curved knife. Appellant's blood alcohol level, an hour and a half later, was.06.
As a result of these events appellant was charged with three felonies and five misdemeanors. The felonies charged were assault on a peace officer (Pen. Code, § 245, subd. (c)), exhibition of a deadly weapon at a peace officer (Pen. Code, § 417.8), and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). The misdemeanors were flight from an officer (Veh. Code, § 2000.1, subd. (a)), driving under the influence (Veh. Code, § 23152, subd. (a)), driving with a blood alcohol level of.08 or more (Veh. Code, § 23152, subd. (b)), delaying a peace officer (Pen. Code, § 148, subd. (a)(1)), and resisting a peace officer by threat (Pen. Code, § 69). The information also contained enhancing allegations including that appellant had suffered two prior prison term convictions (Pen. Code, § 667.5, subd. (b)), two prior serious felony convictions (Pen. Code, § 667, subd. (a)) and two prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The prior serious felony convictions that were alleged to have been "brought and tried separately" were brandishing a firearm at a peace officer (Pen. Code, § 417.8) in Santa Clara County Superior Court docket no. EE117692 and accessory in furtherance of gang activity (Pen. Code, § 32/186.22, subd. (b)(1)) in Santa Clara County Superior Court docket no. EE117692.
Case No. CC629776/Downtown Stabbing
In the early morning hours of May 14, 2006, appellant was in downtown San Jose when he became involved in an altercation after someone made an apparently offensive comment about gloves that the man who was with appellant was wearing. Appellant stabbed a woman once in the abdomen and stabbed a man seven times in his upper body. Appellant fled when police officers attempted to apprehend him and was struck three times with an officer's baton before he stopped running. As a result of this incident, appellant was charged with two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and one count of resisting arrest (Pen. Code, § 148). The information also alleged enhancing allegations including two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)). The prior serious felony convictions alleged to have been brought and tried separately were brandishing a firearm at a peace officer (Pen. Code, § 417.8) in Santa Clara County Superior Court docket no. EE117692 and brandishing a firearm at a peace officer (Pen. Code, § 417.8) in Santa Clara County Superior Court docket no. EE117692.
Trial Court Proceedings
On April 25, 2007, as to both informations, appellant pleaded no contest to all of the charges and admitted all of the enhancing allegations. As for the serious felonies conviction allegations in the assault on an officer case, the trial court asked appellant if he admitted "the five year prior under 667 of the Penal Code one for the personal use or brandishing a firearm at an officer?" Appellant answered, "Yes." The court said, "and you admit that another serious felony of 667A for accessory and furtherance of gang activity?" Appellant answered, "Yes." In the stabbing case, the court asked appellant as to his brandishing a firearm at a peace officer prior conviction, "And you admit the five years serious felony prior on that same offense under 667A?" Appellant answered, "Yes." The trial court also asked appellant if he "admit[ted] the second prior to accessory in furtherance of gang activity?... And for that same offense five year prior under 667A of the Penal Code, you admit that?" Appellant answered, "Yes."
The trial court further advised appellant, "at the time of sentencing we will have you... complete a statement of assets, pay a $10 fine, actual restitution to the victims; a restitution fund fine of not less than $200 no more than $10,000 and an equal amount imposed but suspended. General funds fine not to exceed ten thousand."
Appellant's case was set for a motion to dismiss prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Under consideration were the brandishing a firearm at a peace officer conviction and the accessory in furtherance of gang activity conviction. In support of this motion, defense counsel argued that appellant's "strike priors were committed only six days apart. Although the cases were plead[ed] separately, they were sentenced at the same time." The prosecutor's opposition to this motion acknowledged, "The defendant's strike priors were originally charged in separate docket[s], but were consolidated for purposes of trial." At the hearing on the motion, defense counsel told the court that the two prior convictions had been consolidated for sentencing and the prosecutor corrected him and stated that they were "consolidated for trial." The probation report included appellant's arrest history which showed that both prior convictions are listed under one District Attorney case no. 010409242.
On December 18, 2007, the trial court granted appellant's motion to dismiss one prior strike conviction alleged in one count of case no. CC629776 (the stabbing case) and one prior strike conviction as to each of three counts in case no. CC591335 (the assault on an officer). The court said it was "going to base that on the family support the defendant has, his age, the fact that he had stable employment and some prospects." The court denied the motion to dismiss as to one of the prior strike convictions in case no. CC629776.
In case no. CC629776 (the stabbing) the trial court imposed a total state prison term of 25-years-to-life consecutive to a 24-year term. This included two consecutive five-year terms for the prior serious felony allegations imposed pursuant to Penal Code section 667, subdivision (a). In case no. CC591335 (the assault on an officer), the court imposed a total term of 12 years, eight months, including two consecutive five-year terms for the prior serious felony allegations imposed pursuant to Penal Code section 667, subdivision (a).
The court said, "Two hundred dollar restitution fund fine with an equal amount imposed but suspended." The court then asked, "Actually, did we do the restitution fund right?" The probation officer said, "It would be the maximum amount." The court said that on case no. CC629776 (the stabbing), "it's 10, 000 with an equal amount imposed but suspended rather than 200." The court then said that on case no. CC591335 (the assault on an officer), "it's the same... except that on twelve [years], eight [months] the restitution fund fine would be-" The probation officer interjected, "4, 800." The court said, "4, 800 with an equal amount imposed but suspended." Thus, pursuant to Penal Code sections 1202.4 and 1202.45, the court imposed restitution fines and suspended parole fines totaling $14,800.
Penal Code Section 667, Subdivision (a)
Appellant contends, "The court's imposition of two of the five-year enhancements imposed pursuant to Penal Code section 667, subdivision (a), was error because the prior felonies upon which the enhancements were based had not been brought and tried separately."
Respondent, citing People v. Wrice (1995) 38 Cal.App.4th 767, contends that "Appellant has forfeited his claim because defense counsel did not object to imposition of the serious felony prior enhancements." Respondent asserts that, because of the lack of an objection, "the parties and this Court are relegated to divining facts from an incomplete record and making determinations based on inferences therefrom."
Wrice said that the advisement of the penal consequences of admitting a prior conviction is a judicially declared rule of criminal procedure and thus any claim of error in failing to advise a defendant of the penal consequences of an admission is forfeited if not raised at sentencing. (Wrice, supra, 38 Cal.App.4th at pp. 770-771.) Appellant does not claim that there was error in the advisements about the consequences of admitting his prior convictions. Rather, appellant's contention is that his sentence was unauthorized. This is a claim we may review in the absence of an objection. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Penal Code section 667, subdivision (a) provides in pertinent part that "any person convicted of a serious felony who previously has been convicted of a serious felony... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." In In re Harris (1989) 49 Cal.3d 131, the California Supreme Court ruled that "the requirement in section 667 that the predicate charges must have been 'brought and tried separately' demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." (Id. at p. 136.)
Here, the record shows that both defense counsel and the prosecutor recognized that the prior convictions were charged separately but consolidated for trial. Furthermore, the arrest report history shows one district attorney case number and one court case number for both convictions. Respondent acknowledges, "Crediting appellant's inferences from the record that the convictions were not brought and tried separately because the convictions were consolidated for trial, respondent agrees that two of the four five-year enhancements, pursuant to Penal Code section 667, subdivision (a)(1), should be stricken." We agree with respondent that "the trial court erred by implicitly finding two separate and distinct prior serious felony convictions in each case, and, therefore, only one of the prior serious felony allegations may remain. Accordingly, one five-year enhancement should be stricken in each of appellant's cases and his sentence reduced by 10 years."
Fines
At the time appellant entered his unconditional plea to two informations at one hearing, the trial court advised him that one consequence could be "a restitution fund fine of not less than $200 no more than $10,000 and an equal amount imposed but suspended." The probation department prepared one report and, at the one sentencing hearing, the trial court, pursuant to Penal Code sections 1202.4 and 1202.45, imposed a restitution fund fine of $10,000 with an equal amount imposed but suspended in case no. CC629776 (the stabbing), and on case no. CC591335 (the assault on an officer), a restitution fund fine of $4,800 with an equal amount imposed but suspended. Appellant contends, "The trial court was without authority to impose restitution and parole revocation fines in excess of $10,000."
Penal Code section 1202.4, subdivision (a)(3)(A) provides that, in addition to any other penalty provided or imposed under law, the court shall order a person convicted of a crime to pay a restitution fine in accordance with Penal Code section 1202.4, subdivision (b). Penal Code section 1202.4, subdivision (b) provides, "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Italics added.)
In Soria, supra, 48 Cal.4th 58, the Supreme Court held that the Court of Appeal had erred in agreeing with the defendant's claim that separate fines in each of three cases totaling more than $10,000 ($10,000, $400, and $200) was unauthorized. (Id. at p. 62.) The Supreme Court ruled that under a correct reading of Penal Code section 1202.4, the fines had to be imposed "in every case" because " 'every case' plainly means each case filed against the defendant." (Id.at pp. 62-63.) Thus, the Soria court held that "Defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines." (Id. at p. 66.) Accordingly, we reject appellant's contention.
Disposition
In Santa Clara County Superior Court case no. CC591335, the trial court is directed to modify the abstract of judgment by striking one of the five-year Penal Code section 667, subdivision (a), enhancements, thus reducing the term to seven years, eight months. In Santa Clara County Superior Court case no. CC629776 the trial court is directed to modify the abstract of judgment by striking one of the five-year Penal Code section 667, subdivision (a), enhancements, thus reducing the determinate part of the term imposed to 19 years. As so modified, the judgments are affirmed. The superior court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: RUSHING, P. J., PREMO, J.