People v. Garcia

• Decision Date: 10 March 1995
• Docket Number: No. E012709,E012709
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Francisco GARCIA, Defendant and Appellant.

Page 73

39 Cal.Rptr.2d 73

32 Cal.App.4th 1756

PEOPLE of the State of California, Plaintiff and Respondent, v. Francisco GARCIA, Defendant and Appellant.

No. E012709.

Court of Appeal, Fourth District, Division 2, California.

March 10, 1995.

Certified for Partial Publication ^*

Review Denied May 31, 1995.

[32 Cal.App.4th 1762] Jeffrey J. Stuetz, under appointment by the Court of Appeal, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and Joyce N. Burnett, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

RICHLI, Associate Justice.

I. FACTUAL BACKGROUND

In the early morning hours of August 9, 1992, Jorge Verdin Mendez (Verdin) was driving east on Ralston Street in the City of Ontario. In the car with him were Manuel Rios, Marcos Rios, and Jesus Rios. ¹ As Verdin slowed down for a stop sign at the intersection of Ralston and Euclid Avenue, defendant Francisco Garcia (defendant) walked from the garage of a nearby house, down the driveway, and up to Verdin's car.

Defendant pulled out a gun. He told Verdin and the others to get out of the car, but no one in the car moved. Defendant then shot out the left rear window of the car. Manuel Rios, who was sitting in the back seat next to the window, ducked; glass fell on his head, but he was not hurt. Defendant reached into the car, turned off the ignition, and took the keys. Now everyone got out of the car. As Verdin got out, defendant kicked him in the face.

Verdin and Manuel Rios were wearing neck chains; defendant pulled the chains off, breaking them. At this point, two to four other men came down the driveway and joined defendant. One of them had a knife. The one with the knife asked Marcos Rios for money; when Marcos said he had none, he took Marcos's hat. Defendant continued to hold the gun on the victims while one of his accomplices searched the car. Defendant then told the victims to get back in the car. He gave the keys back to Verdin and said, "Leave, get out of here."

As the car started to pull away, defendant fired three or four shots at it. Several of these shots hit the car. Verdin stepped on the gas. He turned left onto Euclid, but the pavement was wet and he lost control of the car; it crashed into a light pole. The victims jumped out of the car and ran away.

II. PROCEDURAL BACKGROUND

On August 11, 1992, a petition concerning defendant was filed in juvenile court pursuant to Welfare and Institutions Code section 602. On September 3, 1992, the juvenile court found that defendant was not a fit and proper subject to be dealt with under the juvenile court law. On September 9, 1992, the juvenile court dismissed the petition and ordered that criminal proceedings against defendant be commenced.

Accordingly, on September 8, 1992, a felony complaint was filed against defendant. On September 17, defendant was held to answer. On October 1, 1992, an information was filed charging defendant as follows: ²

Counts 1 through 3: second degree robbery (§ 211) of Jorge Verdin, Manuel Rios, and Marcos Rios, respectively.

Count 4: attempted second degree robbery (§§ 211, 664) of Jesus Rios.

Count 5: shooting at an occupied motor vehicle (§ 246).

Counts 6 through 9: assault with a firearm (§ 245, subd. (a)(2)) on Jorge Verdin, Manuel Rios, Marcos Rios, and Jesus Rios, respectively.

In connection with every count except count 5, it was alleged for sentence enhancement purposes that defendant personally used a firearm (former § 12022.5, subd. (a); amended by Stats.1994, First Ex.Sess.1994, ch. 31, § 3 [increasing upper term from 5 years to 10 years] ), and that defendant was armed with a firearm (§ 12022, subd. (a)(1)).

On December 3, 1992, following trial, a jury found defendant guilty as charged and found all enhancement allegations true.

On December 29, 1992, the trial court sentenced defendant as follows:

On count 1, robbery of Jorge Verdin: three years (the midterm), plus four years (the midterm) on the personal firearm use enhancement, to be served consecutively. Execution of sentence on the arming enhancement was stayed.

On counts 2 and 3, robbery of Manuel Rios and Marcos Rios: one year (one-third the midterm of three years) on each, to be served consecutively. Execution of sentence on both enhancements was stayed.

On count 4, attempted robbery of Jesus Rios: eight months (one-third the midterm of two years), to be served consecutively. Execution of sentence on both enhancements was stayed.

On count 5, shooting at occupied motor vehicle: one year, eight months (one-third the midterm of five years), to be served consecutively.

On count 6, assault with a firearm on Jorge Verdin: one year (one-third the midterm of three years), to be served consecutively. Execution of sentence on both enhancements was stayed.

On counts 7, 8, and 9, assault with a firearm on Manuel Rios, Marcos Rios, and Jesus Rios: three years (the midterm) on each, plus four years (the midterm) on the personal firearm use enhancement on each count, to be served concurrently. Execution of sentence on the arming enhancement on each count was stayed.

The trial court imposed a total prison term of 12 years, 4 months.

Half an hour later, however, counsel for defendant brought it to the trial court's attention that defendant had been under 18 when the crimes were committed. Accordingly, the trial court vacated the sentence it had imposed, suspended the criminal proceedings, and remanded defendant to the California Youth Authority (CYA) for an amenability report (Welf. & Inst.Code, § 707.2).

The CYA found defendant not amenable to CYA treatment and training. Accordingly, on May 6, 1993, the trial court reinstated the criminal proceedings and resentenced defendant. On count 1 and the personal firearm use enhancement thereto, instead of imposing the midterms of three and four years, the trial court imposed the upper term of five years on each. Also, whereas the first time, the trial court ran defendant's sentences on counts 7, 8, and 9 concurrently with the sentence on count 1, the second time, it stayed execution of sentence on counts 7, 8, and 9. Otherwise, the trial court imposed the same sentence it had before. The total prison sentence was 15 years, 4 months, less credit for time served. The trial court ordered defendant housed at CYA.

Defendant filed a timely notice of appeal.

III. THE TRIAL COURT'S JURISDICTION TO RESENTENCE DEFENDANT

Defendant contends that the trial court lacked jurisdiction to vacate its first sentence and to resentence him.

The leading case on jurisdiction to increase a prison sentence once it has been rendered is still People v. Thomas (1959) 52 Cal.2d 521, 342 P.2d 889. There, the defendant was sentenced to six months in jail. The trial court issued a written order remanding the defendant to the custody of the sheriff "pending such further disposition as the court may order," and the sheriff transported the defendant to jail. When the clerk went to prepare the minute order, however, he realized that a prior conviction allegation had not yet been tried. He notified the judge and both counsel, then phoned the sheriff and told him to return the defendant to court. (Id., at p. 536, 342 P.2d 889.) The trial court "rescinded" its previous sentence, found the prior conviction allegation true, and sentenced the defendant to prison. (Id., at pp. 526-527, 342 P.2d 889.)

The Supreme Court began by noting that "the jurisdictional problem, as limited by the facts, is that of the trial court's power, after rendition of judgment, to change a valid sentence so as to increase the punishment." (Id., at p. 529, 342 P.2d 889, fns. omitted.) ³ It held that the trial court lost such jurisdiction once the sentence was entered in the minutes of the court, or the defendant began serving the sentence. (Id., at pp. 529-531, 342 P.2d 889.) It rejected, as dictum, statements in earlier cases to the effect that the trial court might also lose jurisdiction once the defendant was restrained by the sentence. (Id., at p. 533-534, 342 P.2d 889.)

The court further held that defendant Thomas had not yet begun serving his jail sentence. "A California defendant sentenced to county jail does not mechanically pass from the control of the court to the control of the executive, for the sheriff is both a ministerial officer of the court for the purpose of keeping defendant until service of sentence begins [citations] and also the executive officer who executes the jail sentence [citations]." (Id., at pp. 531-532, 342 P.2d 889.) "Furthermore, under California procedure, after pronouncement of a judgment of imprisonment the sheriff continues to detain the prisoner, whether or not such officer has a copy of a paper stating that the prisoner is to be held under such judgment...." (Id., at p. 532, 342 P.2d 889.) "In the circumstances here presented we think that the sheriff, in moving defendant about the county, and into and out of the jail, under an order which authorized him 'to hold said defendant pending such further disposition as the court may order,' continued to act as an officer of the court restraining defendant for the court and did not begin to act as an executive officer carrying out execution of a sentence which had not yet been entered in the minutes." (Id., at p. 533, 342 P.2d 889.) Thus, it concluded that the trial court properly resentenced the defendant. (Id., at p. 536, 342 P.2d 889.)

More recently, in People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100, the Supreme Court dealt with a case in which the trial court modified its sentence so as to lessen the punishment. In Karaman, the defendant was sentenced to four years in prison, including two years for a personal firearm use enhancement. This sentence was entered in the minutes; however, execution of the sentence was stayed for one week so the...