People v. Lepe

• Court: California Court of Appeals
• Writing for the Court: BUTLER; KREMER, P.J., and HUFFMAN
• Citation: 241 Cal.Rptr. 388,195 Cal.App.3d 1347
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos R. LEPE, Defendant and Appellant. D004159.
• Decision Date: 03 November 1987

Page 388

241 Cal.Rptr. 388 195 Cal.App.3d 1347 The PEOPLE, Plaintiff and Respondent,
v.
Carlos R. LEPE, Defendant and Appellant. D004159. Court of Appeal, Fourth District, Division 1, California. Nov. 3, 1987.

[195 Cal.App.3d 1348] Elsa L. Norbeck, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Page 389

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael D. Wellington, Supervising Deputy Atty. Gen., and Lilia E. Garcia, Deputy Atty. Gen., for plaintiff and respondent.

[195 Cal.App.3d 1349] BUTLER, Associate Justice.

Carlos R. Lepe appeals his four-year prison term concurrent with an earlier term of imprisonment. We shall relate the sentencing sequences, discuss his contentions, and affirm.

I

On April 16, 1985, Lepe pleaded guilty in Imperial County Superior Court case number 12176 to two counts of assault with a deadly weapon (PEN.CODE, § 245(A)(1))¹. While out on bail awaiting sentencing, he was arrested and jailed April 24, 1985 on the instant case for purse-snatching. On May 20, 1985, the court sentenced him to two concurrent upper four-year terms in case number 12176 and, pursuant to stipulation of counsel, credited him with 561 days for time served, including good behavior credits.

In September 1985, Lepe pleaded guilty in this case to grand theft person (§ 487(2)) and admitted he had served a prior prison term (§ 667.5(b)). On October 25, 1985, the court sentenced him to a total four-year term, consisting of the upper three-year term for the theft and a one-year enhancement for the earlier prison term. The court ordered this sentence to run concurrent with the prison term Lepe was then serving in case number 12176. Lepe was also credited with 277 days for time served in this case.

II

In an interesting twist of logic, Lepe appeals, ² contending the sentencing court abused its discretion in ordering this case concurrent with his sentence in case number 12176. He asserts statutory sentencing and California Rules of Court ³ criteria mandate consecutive terms. He also argues the court in imposing concurrent terms denied him certain limitations on enhancements for terms imposed consecutively, denied him appropriate presentence credits for time served, denied him uniformity of [195 Cal.App.3d 1350] sentence, and in effect, unlawfully imposed a longer term of commitment based solely on its subjective beliefs. These contentions are meritless.

III

It is well established a trial court has discretion to determine whether multiple sentences are to run concurrently or consecutively. (§ 669; People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225.) Generally, this determination is a sentencing choice for which the trial court is required to state reasons on the record. (§ 1170(c); rules 405 & 443; People v. Bejarano (1981) 114 Cal.App.3d 693, 704, 173 Cal.Rptr. 71.) A concurrent sentence, though, will be imposed as a matter of law if the court fails to determine how the terms of imprisonment will run in relation to each other; thus no reasons are needed to impose concurrent terms. (§ 669.) Rule 425 sets forth criteria affecting the court's decision to impose consecutive rather than concurrent sentences. In the absence of a clear showing of abuse, an appellate court will not disturb the trial court's exercise of discretion in this regard. (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.) The trial

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court abuses its discretion only when, considering all the circumstances, its determination exceeds the bounds of reason. (Ibid.) IV

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