Filed 5/12/17 P. v. Mendoza CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
FEBRONIO ALEXANDER MENDOZA,
Defendant and Appellant.


A147076

(San Mateo County
Super. Ct. No. SC082263A)


On this appeal defendant Febronio Alexander Mendoza challenges his sentence imposed pursuant to a plea agreement resolving two counts of robbery in the second degree and a related firearm-use enhancement. He contends, and the Attorney General agrees, that the court imposed an unauthorized and therefore illegal term on the firearm-use enhancement. However, the parties disagree as to the appropriate remedy. Defendant contends we should vacate the sentences and remand for resentencing. The Attorney General contends we can modify the sentences, and as modified, affirm the judgment. We conclude the appropriate remedy is to vacate the sentences and remand the matter for resentencing.
Defendant was charged with robbery in the second degree (Pen. Code, § 212.5, subd. (c) ) (count one); robbery in the second degree (§ 212.5, subd. (c)), with a related allegation of personal use of a firearm (§ 12022.53, subd. (b)) (count two); attempted robbery (§§ 212.5, subd. (c); 664) (count three) and receiving a stolen firearm (§ 496, subd. (a)) (count four). At a change of plea proceeding, defendant pleaded no contest to counts one and two and the remaining counts were dismissed. The related firearm-use enhancement allegation attached to count two was amended to a violation of section 12022.5, subdivision (a), instead of section 12022.53, subdivision (b), and defendant admitted it. The court indicated it would impose an aggregate sentence between five years and 10 years in state prison. The state prison sentence range for robbery in the second degree is two, three, or five years, and the state prison sentence range for the firearm-use sentence enhancement (§ 12022.5, subd. (a)) is three, four, or ten years. (§§ 213, subd. (a)(2); 12022.5, subd. (a).) At sentencing, the court believed a ten-year sentence was not appropriate as the then 20-year-old defendant was “much too young” for such a commitment. However, based on the court’s observations of defendant in court, and his inaction in pursuing drug treatment during his time in custody, the court also believed that a five-year sentence was not appropriate. Thus, the court imposed an aggregate term of seven years, consisting of consecutive terms of three years (the middle term) on count one (the principal term), one year (one-third of the middle term) on count two (the subordinate term), and three years (the low term) for the firearm-use enhancement related to count two.
Section 1170.1, subdivision (a), sets the sentencing requirements governing the court’s imposition of consecutive terms. In pertinent part, the section provides that when a defendant is convicted of two or more felonies, “the principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Ibid.)
On appeal, the parties agree, and we concur, that the appropriate term on the firearm-use sentence enhancement related to the subordinate robbery offense (count two) was one year (one-third the low term of three years), and not the full low term of three years that was imposed by the trial court. (§ 1170.1, subd. (a).) The parties disagree, however, as to the appropriate remedy for the unauthorized and therefore illegal term.
The Attorney General argues the trial court erred by designating count one as the principal term, rather than count two. He posits that had the court designated count two as the principal term, the full low term of three years for the firearm-use enhancement would have been authorized and proper. Additionally, the change in designation would result, as intended by the trial court, in an aggregate sentence of seven years consisting of consecutive terms of three years (the middle term) on count two, three years (the low term) on the firearm-use sentence enhancement, and one year (one-third the middle term) on count one. Accordingly, the Attorney General asks us to modify the sentences to reflect that count two is designated as the principal term, and to affirm the judgment as modified.
Defendant argues the appropriate remedy is to remand the matter for resentencing with directions to the trial court to obtain an up-to-date probation report on defendant’s prison performance and to reconsider all sentencing choices. He posits that the Attorney General’s argument is premised on the assumption that the trial court would have chosen to impose the middle term of three years on count two, as opposed to being required to impose one-third of the middle term when it imposed a consecutive term. He then contends it is possible that the court would have chosen the low term of two years for count two if it had appreciated it would be the principal term and would be enhanced by three years for the firearm use, which would be a total of five years for that robbery, one year more than the four-year consecutive term the court actually but erroneously imposed. Defendant further argues that at resentencing, the court would be required to obtain an up-to-date probation report so the court could consider how well defendant has performed in prison since the original sentencing, and depending on any new circumstances, the court might conclude that an aggregate term of five years was appropriate.
We conclude the appropriate remedy is to vacate the sentences and remand for resentencing. Here, the trial court expressly imposed an unauthorized and therefore illegal term for the firearm-use enhancement. (See People v. Scott (1994) 9 Cal.4th 331, 354 [“legal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement”].) Additionally, we cannot tell from the record whether the court would have imposed the same aggregate sentence had it designated count two as the principal term. An aggregate prison term “ ‘cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence. . . . In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed . . . . When defendant successfully urged the illegality of his sentence on appeal the illegality did not relate only to a portion of the sentence but infected the whole.’ ” (People v. Burns (1984) 158 Cal.App.3d 1178, 1183; see People v. Burbine (2003) 106 Cal.App.4th 1250, 1258, 1264.) At the new sentencing hearing, the court may “ ‘reconsider all of its sentencing choices, subject only to the limitation that defendant not be sentenced to a greater aggregate term than the first sentence. . . .’ [Citation.]” (People v. Kelly (1999) 72 Cal.App.4th 842, 845.) Our decision should not be read and we express no opinion on how the trial court should exercise its discretionary authority on resentencing.
DISPOSITION
The convictions are affirmed. The sentences are vacated and the matter is remanded for resentencing.


_________________________
Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.