P. v. Romero











Filed 10/12/10 P. v. Romero CA4/2













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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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, v. JUAN MIGUEL ROMERO, Defendant and Appellant.

E049654 (Super.Ct.No. FWV035496) OPINION

APPEAL
from the Superior Court
of San Bernardino
County. Michael R.
Libutti, Judge. Affirmed with directions

Patricia
Ihara, 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, Assistant Attorney General, Gil Gonzalez, Andrew
Mestman and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and
Respondent.

This
appeal constitutes this court's second time addressing this matter.^[1] In defendant Juan Miguel Romero's first
appeal, this court reversed a total of four enhancements in counts 2 and 3;
modified defendant's sentence in count 1; directed the trial court to strike a
prior conviction (Pen. Code, § 667.5, subd. (b));^[2] directed the trial court to strike or impose
sentences for defendant's two other prison prior enhancements (§ 667.5, subd.
(b)); and modified defendant's custody credits.


Defendant
makes the following contentions related to his resentencing hearing: (1) the trial court
erred by resentencing defendant when defendant was not present; (2) the trial
court erred by imposing a full consecutive sentence on count 1, because it was
a subordinate term; (3) the trial court erred by imposing a full consecutive sentence
on the enhancement in count 1, because it was a subordinate term; (4) the trial
court erred when it stayed one of the prison prior enhancements (§ 667.5, subd.
(b)); (5) the abstract of judgment contains errors; and (6) defendant's trial
counsel was ineffective for allowing the foregoing alleged errors to
occur. We affirm the judgment with
directions.

>PROCEDURAL HISTORY

A. JURY'S FINDINGS AND DEFENDANT'S
ADMISSIONS

A
jury found defendant guilty of (1) being a felon in possession of a firearm
(§ 12021, subd. (a)(1)--count 1); (2) falsely imprisoning a person for the
purpose of protection from arrest or for the purpose of using the person as a
shield (§ 210.5--count 2); and (3) false
imprisonment by violence (§ 236--count 3).


As
to all three counts, the jury found true the allegations that defendant
(1) carried a firearm during the commission of a street gang crime (§
12021.5, subd. (a)), and (2) carried a firearm with a detachable magazine or
belt-feeding device during the commission of a street gang crime (§ 12021.5,
subd. (b)). In regard to count 1, the
jury found true the allegation that defendant committed the felony for the
benefit of, at the direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist the gang. (§ 186.22, subd. (b)(1)(A).) As to counts 2 and 3, the jury found true the
allegation that defendant personally used a firearm during the commission of
the felonies. (§ 12022.5, subd. (a).)

Defendant
admitted suffering a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)); three prior convictions, for which he served prison terms
(§ 667.5, subd. (b)); and a prior serious felony conviction (§ 667, subd.
(a)(1)).

B. ORIGINAL SENTENCE

At
the original sentencing hearing, the trial court sentenced defendant as
follows: The court selected count 2,
falsely imprisoning a person for the purpose of protection from arrest, or for
the purpose of using the person as a shield (§ 210.5), as the principal term,
and selected the upper term of eight years.
Based on defendant's prior strike conviction, the court doubled the term
to 16 years. (§ 1170.12, subd.
(c)(1).) Defendant was sentenced to the
midterm of four years for the section 12022.5, subdivision (a), firearm
enhancement, for a total sentence of 20 years.
The court sentenced defendant to two years for the section 12021.5,
subdivision (a), firearm enhancement, and three years for the section 12021.5,
subdivision (b), firearm enhancement, but stayed the sentences.

As
to count 1, being a felon in possession of a firearm (§ 12021, subd. (a)(1)),
the court imposed a consecutive term of one year four months, which was doubled
to two years eight months due to the prior strike, for a total term of 22 years
8 months. The court imposed a three-year
term for the street gang enhancement, for a total sentence of 25 years 8
months. (§ 186.22, subd. (b)(1)(A).) The court sentenced defendant to two years
for the section 12021.5, subdivision (a) firearm enhancement, and three years
for the section 12021.5, subdivision (b) firearm enhancement, but stayed the
sentences.

With
regard to count 3, false imprisonment by violence (§ 236), the court imposed
one-third the midterm of two years, which was doubled for the prior strike, but
the court stayed the sentence pursuant to section 654. The court also stayed the sentences for the
firearm enhancements. (§§ 12022.5, subd.
(a), 12021.5, subds. (a)-(b).)

As
to defendant's three prior convictions that resulted in prison terms (§ 667.5,
subd. (b)), the court imposed and stayed one-year sentences. The court imposed a consecutive five-year
term for the prior serious felony conviction (§ 667, subd. (a)(1)), which
created a total sentence of 30 years 8 months.


C. APPEAL

In
the prior appeal, our disposition read:
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