Fear Not Law Articles: P. v. Gaustad

P. v. Gaustad

Filed 7/21/08 P. v. Gaustad CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

RICKY LEE GAUSTAD,

Defendant and Appellant.

E043470

(Super.Ct.No. RIF124579)

OPINION

APPEAL from the Superior Court of Riverside County. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part, reversed in part with directions.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Ricky Lee Gaustad was convicted of, among other things, robbery and dissuading a witness by force. During the sentencing hearing, the trial court indicated that it was required to impose a consecutive sentence for the dissuading-a-witness-by-force conviction. On appeal, defendant contends, and the People concede, that the trial court failed to recognize that it had the discretion to impose a concurrent term. We agree with the parties. Therefore, the sentence is reversed; in all other respects, judgment is affirmed. The trial court is directed to conduct a new sentencing hearing.

FACTUAL AND PROCEDURAL HISTORY^{^[1]}

On June 27, 2005, defendant entered a donut shop with another man, jumped over the counter, grabbed the clerk by her hair, and put a gun to her throat. While pulling on her hair and keeping the gun to her throat, defendant demanded that the clerk open the cash register. The clerk complied; defendants friend took all of the money from the

register. Defendant then led the clerk toward the back of the store, keeping a firm grip on her hair and the gun to her throat, and put her in a storage room. Defendant told the clerk that if she came out of the storage room or called the police, he would shoot her. Defendant was subsequently located and forcibly taken into custody.

On May 17, 2006, the Riverside County District Attorney filed an amended information charging defendant with robbery (Pen. Code, 211)^{^[2]}(count 1); dissuading a witness by force ( 136.1, subd. (c)(1)) (count 2); false imprisonment ( 236) (count 3); and resisting arrest ( 148, subd. (a)(1)) (count 4). As to count 1, the information alleged that defendant had personally used a firearm. ( 12022.53, subd. (b), 1192.7, subd. (c)(8).) As to counts 2 and 3, the information alleged that defendant had personally used a handgun. ( 12022.5, subd. (a), 1192.7, subd. (c)(8).) The information further alleged that defendant had two prior felony convictions. ( 1203, subd. (e)(4).)

On January 10, 2007, the jury found defendant guilty as charged and found true the firearm enhancements. On June 8, 2007, the trial court sentenced defendant to 20 years in state prison. Defendant appeals.

ANALYSIS

The Trial Court Must Conduct a New Sentencing Hearing

Defendant contends, and the People concede, that the trial court erroneously believed that section 1170.15 mandated a consecutive sentence for count 2, dissuading a witness by force. We agree with the parties and remand this case for a new sentencing hearing.

A. Background

During the sentencing hearing, defense counsel requested that all subordinate sentences run concurrently to the principal sentence. In support, counsel argued that counts 1 through 3 all rose out of the same set of operative facts. The prosecutor, however, argued that section 1170.15 mandated a consecutive sentence.

The trial court agreed with the prosecutor and stated: I think that [the prosecution] is correct as to Count 2, 1170.15, that it does treat that count differently than it normally would when youre talking about running sentences consecutively. Its full-term, not 1/3rd the midterm and I believe it requires that it be consecutive. (Italics added.) The court then imposed the full midterm in count 2 and ordered the sentence to run consecutive to the sentence in count 1.

B. Discussion

Section 1170.15 states, in pertinent part, Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against the victim of . . . the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed . . . . (Italics added.)

Under the foregoing language, if the sentencing court chooses to impose a consecutive term for the dissuading-a-witness-by-force conviction, that term must be the full term and not one-third of the full term as section 1170.1, subdivision (a), provides. However, section 1170.15 does not mandate that a term imposed for a dissuading-a-witness-by-force conviction must be a consecutive term. Therefore, the courts belief that 1170.15 required the court to impose a consecutive sentence is incorrect. The sentencing court retained discretion to impose either a concurrent or consecutive term, but if it chose a consecutive term, it had to be the full term and not one-third. Therefore, the sentence must be reversed and the trial court must determine whether to impose a concurrent or consecutive term for the dissuading-a-witness-by-force conviction.

III

DISPOSITION

The sentence is reversed. The superior court is directed to conduct a new sentencing hearing to determine whether it should impose a consecutive or concurrent term for count 2 (dissuading a witness by force), and to state the reasons for imposing the former, if that is its choice. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

We concur:

RAMIREZ

P. J.

HOLLENHORST

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^{^[1]} Because the only issue on appeal concerns a sentencing issue, a brief summary of facts is provided.

^{^[2]} All further statutory references are to the Penal Code unless otherwise indicated.

Description	Defendant and appellant Ricky Lee Gaustad was convicted of, among other things, robbery and dissuading a witness by force. During the sentencing hearing, the trial court indicated that it was required to impose a consecutive sentence for the dissuading a witness by force conviction. On appeal, defendant contends, and the People concede, that the trial court failed to recognize that it had the discretion to impose a concurrent term. Court agree with the parties. Therefore, the sentence is reversed; in all other respects, judgment is affirmed. The trial court is directed to conduct a new sentencing hearing.
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