P. v. Sotelo

















Filed 3/19/13
P. v. Sotelo CA5













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. ISAAC SEBASTIAN SOTELO, Defendant and Appellant.

F062642 (Super. Ct. No. VCF227014A) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Brett R. Alldredge, Judge.

Cheryl
Anderson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-







A jury convicted appellant, Isaac Sebastian
Sotelo, of second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c))href="#_ftn2" name="_ftnref2" title="">^[1] and
resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1)), and
in a separate proceeding, the court found true allegations that appellant had
suffered a prior conviction that qualified as both a prior serious felony
conviction under section 667, subdivision (a) (section 667(a)) and as a
“strike,”href="#_ftn3" name="_ftnref3"
title="">^[2] and
that he had served three separate prison terms for prior felony convictions
within the meaning of section 667.5, subdivision (b) (section 667.5(b)). The court imposed a prison term of 12 years,
consisting of the following: the
three-year midterm on the robbery conviction, doubled pursuant to the
three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) for a total of
six years; five years on the prior serious felony enhancement (§ 667(a)) and
one year on one of the prior prison term enhancements (§ 667.5(b)). The court neither struck, nor imposed
sentence on, the other two section 667.5(b) enhancements.

Prior to trial, appellant made a
so-called Pitchess motion (>Pitchess v. Superior Court (1974) 11
Cal.3d 531) for discovery of personnel records of two police officers involved
in appellant’s arrest. At an in camera
hearing on the motion, the court, after reviewing documents produced at the
hearing, ordered disclosure of some information.

Appellant has asked this court to review the sealed
transcript of the in camera hearing and materials produced by the People at
that hearing “to determine if the trial court followed proper >Pitchess procedures and disclosed all
relevant materials contained in the personnel records.” This is the sole issue raised by
appellant. As we explain below, we find
no error in the trial court’s ruling on the Pitchess
motion. However, as we also explain
below, we have concluded the court committed sentencing error. We vacate the sentence and remand for
resentencing.

>DISCUSSION

Pitchess Motion

The People effectively concede
that review of the court’s Pitchess
motion ruling sought by appellant is proper.
(People v. Mooc (2001) 26 Cal.4th
1216, 1229.) We have conducted an
independent review of the transcript of the in href="http://www.mcmillanlaw.com/">camera hearing and the records produced
at that hearing. The records produced,
according to the attorney appearing at the hearing with the custodian of
records for the Visalia Police Department, constituted “all of the records that
the Visalia Police Department has concerning [the officers named in appellant’s
motion].” Based on our review, we have
concluded there was no abuse of discretion in the court’s ordered disclosure.

Sentencing Error

The court found true, and imposed sentence on, one
prior serious felony enhancement (§ 667(a)) allegation. The court also found true three prior prison
term enhancement allegations (§ 667.5(b)), one of which was based on the same
conviction upon which the prior serious felony enhancement was based, i.e.,
appellant’s 1994 conviction in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County Superior Court case No. CR19480 (case No. CR19480). However, the court imposed sentence on only
one of the prior prison term enhancements and did not strike either of the
other two.

It is with respect to those other
two prior prison term enhancements that we find the court erred. As we explain below, the court erred in: (1) failing to strike one of them, viz., the
section 667.5(b) enhancement based on the same prior conviction upon which the
five-year prior serious felony enhancement was based, and (2) failing to either
strike or impose the other one. Each of
these two enhancements requires a different analysis. Accordingly, we address them in turn. We refer to the prior prison term
enhancement based on the conviction in case No. CR19480 as the CR19480 section
667.5(b) enhancement, and we refer to the other prior prison term enhancement
which the court neither struck nor imposed as the remaining section 667.5(b)
enhancement.

CR19480 Section 667.5(b) Enhancement

In a supplemental brief, appellant argues that the CR19480
section 667.5(b) enhancement
must be stricken because it was based on the same prior conviction upon which
the section 667(a) prior serious felony enhancement was based. We agree.href="#_ftn4" name="_ftnref4" title="">^[3]


Where a prior prison term enhancement and a prior
serious felony enhancement are based on the same conviction, sentence may be
imposed on only the greater of the two enhancements, i.e., the five-year
section 667(a) enhancement. (>People v. Jones (1993) 5 Cal.4th 1142,
1150 (Jones).) Therefore, the prior prison term enhancement
based on the prior conviction in case No. CR19480 must be stricken. (Ibid.)

Appellant argues that the proper
disposition is for this court to simply strike the CR19480 section 667.5(b)
enhancement. However, in >Jones, our Supreme Court remanded the
matter to the trial court with directions to strike the prior prison term
enhancement that was based on the same conviction upon which a section 667(a)
enhancement was based. (>Jones, supra, 5 Cal.4th at p.
1153). Based on Jones, and because, as we explain below, the matter must be
remanded to allow the trial court to address the remaining section 667.5(b)
enhancement, rather than simply striking the CR19480 section 667.5(b)
enhancement, we will remand the matter with directions to the trial court to
strike it.

Remaining Section
667.5(b) Enhancement

When a trial court finds a prior prison term allegation to be true, the trial
court must either impose the additional one-year term or strike the
allegation. (People v. Langston
(2004) 33 Cal.4th 1237, 1241 [prior prison term enhancement is “mandatory
unless stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311
[“the court must either impose the prior prison enhancements or strike
them”].) “The failure to impose or
strike an enhancement is a legally unauthorized sentence subject to correction
for the first time on appeal.” (>People v. Bradley (1998) 64 Cal.App.4th
386, 391.)

Section 1385 authorizes a trial court to strike an
enhancement, in the exercise of its discretion, “in furtherance of justice.” (§ 1385, subd. (a); People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 504 [California Supreme Court has “held that the power
to dismiss an action includes the lesser power to strike factual allegations
relevant to sentencing”]; People v. Bonnetta
(2009) 46 Cal.4th 143, 145 (Bonnetta)
[“discretion ... conferred [by section 1385] on the trial courts includes the
discretion to dismiss or strike an enhancement in the furtherance of
justice”].) “The reasons for the
dismissal must be set forth in an order entered upon the minutes.” (§ 1385, subd. (a).)

It appears here the trial court
intended to strike both the CR19480 section 667.5(b) enhancement and the
remaining section 667.5(b) enhancement under section 1385.href="#_ftn5" name="_ftnref5" title="">^[4] However, the court did not state at
sentencing that it was striking any enhancements, and did not comply with the
requirement of section 1385 that the reasons for striking enhancements be set
forth in the minutes. The court’s
error—the ineffective striking of the remaining section 667.5(b)
enhancement—cannot be deemed harmless. (>Bonnetta, supra, 46 Cal.4th at
pp. 151-152.)

The question that remains is:
Can we carry out the trial court’s apparent intention by simply striking
the remaining section 667.5(b) enhancement, or by directing the trial court to
do so? Bonnetta, supra, 46 Cal.4th 14 provides the answer. As we now explain, under Bonnetta, we must remand the matter to allow the trial court to
either strike the remaining section 667.5(b) enhancement in the exercise of its
discretion under section 1385, or impose it.

In Bonnetta, the
trial court, in sentencing the defendant, struck several enhancements and
stated its reasons for doing so. (>Bonnetta, supra, 46 Cal.4th at p.
148.) The trial court’s decision was
reduced to an order entered upon the minutes, but the written order did not set
forth any of the court’s reasons for striking the enhancements. (Ibid.) Our Supreme Court held the striking of the
enhancements was ineffective, because of the absence of compliance with the
requirement of section 1385 that the reasons for the dismissal be set forth in
the court’s minutes. The high court
ordered remand to the trial court, refusing to “adopt[] ... a new rule allowing
a reviewing court to examine the transcripts of the oral proceedings for a
trial court’s reasons for its decision to dismiss, so that a court’s failure to
comply with the letter of Penal Code section 1385 might be deemed harmless
error ....” (Bonnetta, supra, at p. 150.)
The court stated: “Having
concluded Penal Code section 1385 states a mandatory requirement, we have no
reason to consider whether a violation of its provisions might be deemed
harmless. Nonetheless, ... we find it
useful again to note that the purpose of the requirement is to allow review of
the trial court’s reasons for ordering dismissal. ‘[W]e are dealing not with a pure question of
law but with the exercise of a trial court’s discretion. It would be incongruous for an appellate
court, reviewing such order, to rely on reasons not cited by the trial
court. Otherwise, we might uphold a
discretionary order on grounds never considered by, or, worse yet, rejected by
the trial court. And, if the appellate
court is free to scour the record for other reasons to support the dismissal,
or accept reasons suggested by the defendant, there was no reason for the
Legislature to require that the lower court record the basis for the dismissal
in the first instance.’” (>Id. at pp. 151-152.)

Further, the court stated: “[A]s the trial court’s order of dismissal is
ineffective, the matter must be remanded at least for the purpose of allowing
the trial court to correct the defect by setting forth its reasons in a written
order entered upon the minutes.
Alternatively, on remand the trial court may, but need not, revisit its
earlier decision, as on reflection it might determine its reasoning was flawed
or incomplete. Judicial economy is
furthered by allowing the trial court to correct what, upon reconsideration and
reflection, it perceives to have been an unwarranted dismissal, or to consider
if a dismissal should be ordered for some new or different reason. In such cases, the court must also have thename="sp_4645_287"> name="citeas((Cite_as:_46_Cal.4th_143,_*153,_2">power to take action such
as reconvening the sentencing hearing or allowing a defendant to withdraw a
plea entered on the understanding a count or an enhancement would be
dismissed.” (Bonnetta, supra, 46
Cal.4th at p. 153.)

The reasoning of Bonnetta
applies here. Under Bonnetta, notwithstanding the trial court’s apparent intention to
strike the remaining section 667.5(b) enhancement, we may not carry out that
intention by striking this enhancement or directing the trial court to do
so. Rather, we must remand the matter to
the trial court with directions that the trial court either impose sentence on
the remaining section 667.5(b) enhancement or strike it in the exercise of its
discretion under, and in compliance with, section 1385.

DISPOSITION

The sentence is vacated and the
matter is remanded for resentencing. On
resentencing, the trial court is directed to strike the prior prison term
enhancement based on appellant’s conviction in Tulare County Superior Court
case No. CR19480. The trial court is
further directed to either strike or impose sentence on the other prior prison
term enhancement on which the court did not impose sentence at the initial
sentencing. If at resentencing the trial
court strikes this latter enhancement, the court shall do so in compliance with Penal Code
section 1385. In all other respects the
judgment is affirmed.