P. v. >Watts>

 

 

 

 

 

 

 

 

 

 

Filed 9/23/13  P. v. Watts
CA3

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Placer)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JAMES ROBERT WATTS,                           Defendant and Appellant.

C071486   (Super. Ct. No. 62002697)

 

 

            A jury convicted defendant James
Robert Watts in 1999 of four counts of forcible
rape (Pen. Code, § 261, subd. (a)(2)),href="#_ftn1" name="_ftnref1" title="">[1] penetration
by a foreign object (§ 289, subd. (a)), assault with a deadly weapon
likely to produce great bodily injury (§ 245, subd. (a)(1)), attempting to
dissuade a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery
(§ 242).  (People v. Watts (Dec. 15, 2000, C034074) [nonpub. opn.] at
p. 1.)  The jury also sustained
great bodily injury, deadly weapon and one strike allegations against defendant
(§§ 12022.8, 12022.7, subd. (a), 12022.3, subd. (a), 12022, subd. (b)(1),
former 667.61, subds. (a), (b), and (e)). 
The trial court sentenced defendant to 117 years to life in prison. 

            In an unpublished opinion, this
court struck a one year weapons enhancement and affirmed the judgment as
modified.  (People v. Watts, supra,
C034074 [nonpub. opn.] at p. 11.)

            The California href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation
(CDCR) subsequently sent a letter to the trial court in May 2012 identifying an
error in defendant’s sentence.  The
letter said the trial court imposed a consecutive one-year term (one-third the
three year middle term) on count four [attempting to dissuade a witness by
force] (§ 136.1, subd. (c)(1)), but section 1170.15 provides that if a consecutive
term is imposed for a violation of section 136.1, the trial court must impose a
full middle term. 

            At a June 20, 2012 resentencing hearing, the trial court
modified the sentence to impose a three-year consecutive term for the section
136.1 conviction on count four.  The
trial court prepared an amended abstract of judgment reflecting the modified
judgment. 

            Defendant appeals, arguing he must
be resentenced again because (1) the trial court did not understand that it had
discretion to impose a concurrent term on count four, (2) defense counsel was
ineffective in failing to argue for a lower sentence at resentencing, and (3)
the amended abstract of judgment must be corrected to reflect defendant’s time
in custody before resentencing.

            We conclude (1) given the context of
the trial court’s statements at resentencing, the trial court understood and
properly exercised its discretion; (2) defendant’s claim of ineffective
assistance fails because he has not established prejudice; and (3) we will
remand the matter and direct the trial court to calculate and award any
presentence credit to which defendant is entitled. 

            In all other respects we will affirm
the judgment.

BACKGROUND

            When defendant initially appeared
for the resentencing hearing, the trial court informed defendant that CDCR
identified a sentencing error.  The trial
court then said:  “[T]hey pointed out
correctly that you were convicted of dissuading . . . a witness by
force, and that requires under the Code a full consecutive middle term, not on
a one-third middle consecutive term.  It
makes a difference of two years, but I’m required to impose that additional
time, at least as [CDCR] has interpreted that, and that’s how I have
interpreted it.  [¶]  You are here without an attorney.  If you want to have consultation with an
attorney, I’m very happy to give you that opportunity.  In my opinion, it’s a legal issue that is, --
I don’t have discretion.  I have to
impose the additional two-year period, but there may be a different view on
this.” 

            Defendant said he wanted counsel,
and the trial court appointed counsel for the resentencing hearing.  The matter was continued until 1:30 p.m. that day so defendant could speak with his
attorney. 

            When the hearing reconvened at 1:30
p.m., the trial court said to defense counsel: 
“[Y]ou understand the circumstances, based upon the letter from [CDCR],
dated May 14th of this year, regarding essentially the unauthorized
sentence imposed by this Court, erroneously imposing a one-third midterm
sentence on the Penal Code Section 136.1(c)(1) violation, rather than the
full term midterm.  And because it’s an
unauthorized sentence, the Court is obligated to correct that error whenever it
is brought to its attention.  [¶]  And so it would be my intent, subject to any
further comment that you might have, to in fact correct that error, to impose a
three-year midterm on Count 4, rather than a one-year reduced term.” 

            Defense counsel did not object to
the three-year term in count four. 
Defense counsel, the prosecutor and the trial court spent the remainder
of the hearing discussing this court’s prior opinion and its effect on the
sentence. 

DISCUSSION

I

            Defendant contends the matter must
be remanded for resentencing again because the trial court did not understand that
it had discretion to impose a concurrent term on count four. 

            Section 1170.15 states:  “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 or 137 and that was committed against the victim of,
or a witness or potential witness with respect to, or a person who was about to
give material information pertaining to, the first felony, or of a felony
violation of Section 653f that was committed to dissuade a witness or potential
witness to 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, and shall include the full term prescribed for any
enhancements imposed for being armed with or using a dangerous or deadly weapon
or a firearm, or for inflicting great bodily injury.” 

            Defendant correctly points out that
a trial court retains the discretion to impose a concurrent term for a
violation of section 136.1.  Defendant
claims the trial court’s comments during the href="http://www.mcmillanlaw.com/">resentencing hearing indicate that it
did not understand this discretion.  We
disagree.

            The trial court understood and
exercised its discretion in imposing the consecutive sentence on count
four.  The trial court’s comments at
resentencing were merely to explain to defendant and his counsel that when a
consecutive sentence is imposed on a conviction for a violation of section
136.1, section 1170.15 requires the trial court to impose the full middle term.  The trial court was explaining why it needed
to change the unauthorized portion of the sentence.

            Given the context of the trial
court’s statements, we conclude the trial court understood and properly
exercised its discretion at resentencing.

II

            Defendant next contends his
appointed counsel was ineffective in failing to argue for a lower sentence at
resentencing. 

            But defendant has not established
prejudice, an essential element of an ineffective assistance claim.  (In re
Avena (1996) 12 Cal.4th 694, 721.) 
Defendant has not shown, and nothing in the record indicates, that there
was a reasonable probability that defendant would have obtained a more
favorable result had defense counsel argued for a lower sentence.

III

            Defendant further contends the
abstract of judgment must be corrected to reflect defendant’s time in custody
before resentencing.  The People
acknowledge that the trial court should be directed to prepare an amended
abstract of judgment reflecting presentence credits. 

            “[W]hen a prison term already in
progress is modified as the result of an appellate sentence remand, the
sentencing court must recalculate and credit against the modified sentence >all actual
time the defendant has already served, whether in jail or prison, and
whether before or since he was originally committed and delivered to prison
custody.”  (People v. Buckhalter (2001) 26 Cal.4th 20, 29, original
italics.)

            We will remand the matter and direct
the trial court to calculate and award any presentence credit to which defendant
is entitled and to prepare a second amended abstract of judgment reflecting
defendant’s presentence credit.

DISPOSITION

            The matter is remanded to the trial
court with directions to calculate and award any presentence credit to which
defendant is entitled, and to prepare a second amended abstract of judgment
reflecting defendant’s presentence credit. 
The trial court shall forward a certified copy of the second amended
abstract of judgment to the Department of
Corrections and Rehabilitation.  In
all other respects, the judgment is affirmed.

 

 

 

                                                                                                          MAURO                       , J.

 

 

We concur:

 

 

                       NICHOLSON                    , Acting P. J.

 

 

                       DUARTE                           , J.