People v. Amaya

HOLLENHORST Acting P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIF1405950 & RIF1300474) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed with directions. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jose Alfredo Amaya challenges the sentence he received involving two Superior Court cases, Nos. RIF1300474 and RIF1405950. He contends: (1) the trial court did not understand that it possessed the discretion to impose a concurrent, rather than a consecutive, sentence; (2) the trial court's imposition of a lifetime weapons ban is unauthorized; and (3) the trial court improperly increased the restitution fines previously imposed in RIF1300474. We agree that the weapons ban and restitution amounts need to be modified. Otherwise, we affirm.

I. PROCEDURAL BACKGROUND AND FACTS A. Case No. RIF1300474.

On February 13, 2013, in case No. RIF1300474, defendant pled guilty to assault likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted committing the crime to benefit a gang, within the meaning of section 186.22, subdivision (b). He received probation.

All further statutory references are to the Penal Code.

B. Case No. RIF1410034.

On January 26, 2014, defendant went to a "smog shop" where the victim worked. Defendant stole a beer from another person and the victim insisted he return it. Defendant called the victim a "rat" and punched him in the face, causing him to fall. The victim suffered from an illness and had been receiving dialysis treatment. Defendant told the victim that if he reported the incident, defendant would return in "five or six days" and kill him. The attack left the victim feeling dizzy. On October 16, 2014, in case No. RIF1410034, defendant was charged by information with dissuasion of a witness (§ 136.1, subd. (c)(1)), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). It was further alleged that defendant had been convicted of assault with a deadly weapon within the meaning of section 667, subdivisions (a), (c) and (e)(1), and section 1170.12, subdivision (c)(1).

C. Case No. RIF1405950.

On May 4, 2014, defendant returned to the smog shop and encountered a friend of the victim. Defendant walked up to the victim's friend and said: "Are you going to greet me, fucking mother?" When the friend did not reply, defendant left. Suddenly, defendant ran up and punched the victim's friend in the face, knocking him unconscious. Defendant continued to beat him, despite his being unconscious. When the friend woke up, he felt pain in his head, ribs and back. On June 3, 2014, in case No. RIF1405950, defendant was charged by information with assault with force likely to produce great bodily harm (§ 245, subd. (a)(4)). It was further alleged that defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a), and that he had been convicted of assault with a deadly weapon within the meaning of section 667, subdivisions (a), (c) and (e)(1), and section 1170.12, subdivision (c)(1).

On March 2, 2015, the trial court consolidated case No. RIF1405950 with case No. RIF1410034. On September 11, 2015, defendant was charged by amended consolidated information with two counts of assault with force likely to produce great bodily harm (§ 245, subd. (a)(4); counts 1 and 3) and dissuasion of a witness (§ 136.1, subd. (c)(1); count 2). The information further alleged defendant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a), and that he had been convicted of assault with a deadly weapon within the meaning of section 667, subdivisions (a), (c) and (e)(1), and section 1170.12, subdivision (c)(1).

On October 14, 2015, a jury convicted defendant of all charges and found true the allegation that he personally inflicted great bodily injury on the victim in count one. In a bifurcated trial, the court found that defendant previously was convicted of a serious prior felony within the meaning of section 667, subdivisions (a), (c), and (e)(1), and section 1170.12, subdivision (c)(1). The trial court sentenced defendant to 22 years in state prison. Defendant admitted that he had violated probation in case No. RIF1300474. The court revoked probation and sentenced him to one year in state prison. The court struck the punishment on the gang allegation. Defendant also pled guilty to possessing marijuana in jail (§ 4573.8) in case No. SWF1501254, for which he received a consecutive 16-month term.

Defendant's aggregate term of 22 years in state prison consists of the following:
Count 1: (Assault with force likely to produce great bodily harm), principal term of six years (the middle term of three years, doubled pursuant to §§ 667, subd. (e)(1) and 1170.12, subd. (c)(1)).
Count 2: (Dissuasion of a witness), consecutive term of six years (the full middle term of three years, doubled pursuant to §§ 667, subd. (e)(1) and 1170.12, subd. (c)(1)).
Count 3: (Assault with force likely to produce great bodily harm), consecutive term of two years (one-third the middle term of three years, doubled pursuant to §§ 667, subd. (e)(1) and 1170.12, subd. (c)(1)).
Section 12022.7, subdivision (a), enhancement, consecutive term of three years.
Section 667, subdivision (a)(1) enhancement, consecutive term of five years.

III. DISCUSSION A. The Trial Court Properly Imposed Consecutive Sentences.

The victim in count 2 (dissuasion of a witness) and count 3 (assault with force likely to produce great bodily harm) was the same person. The trial court ran the sentence on count 2 consecutive to the sentence on count 3. Defendant contends the sentence on count 2 must be reversed and the matter remanded for resentencing because the trial court failed to recognize that it had discretion to impose a concurrent term in count 2. We disagree.

The probation report noted that count 1 involved a single victim, and that counts 2 and 3 involved another single victim. Regarding counts 2 and 3, the probation report stated that defendant demonstrated two separate intents as to that single victim: first, the intent to assault the victim and second, the intent to prevent the victim from involving law enforcement. The report noted that defendant's crimes involved great violence. The probation officer recommended imposing a sentence of one-third the middle term on count 3, and a full middle term on count 2 (§ 1170.15).

At sentencing, the trial court noted it had reviewed the probation report and the prosecutor's sentencing brief, and had considered the comments of defense counsel and defendant. As recommended by the probation officer, the court designated count 1 the principal term and imposed sentence on that count. As to the subordinate counts 2 and 3, the court imposed consecutive terms. While the court imposed a one-third the middle term on count 1, it noted that section 1170.15 required imposition of a full middle term on count 2. The court observed that defendant's crimes involved multiple victims and callous behavior. Moreover, the court added: "With regard to Count 2, the threat that was made . . . . The acts of [defendant] in attempting to prevent or dissuade the victim from reporting this is a separate course of action. He did have the opportunity to think about his actions. It occurred after that victim was assaulted, so I do not find that 654 applies as to Count 2."

Defendant contends that the "trial court appeared unaware of its discretion to impose a sentence other than a full term consecutive sentence for count two." We disagree. The trial court clearly stated its reason for rejecting concurrent sentences on counts 2 and 3 when it found that defendant's violation of section 136.1, subdivision (c)(1), constituted a separate course of action from his violation of section 245, subdivision (a)(4). (§ 654.) B. The Lifetime Ban on Possession of Any Deadly Weapons, Ammunition, Related Paraphernalia, or Incendiary Device Was Unauthorized.

At the time of sentencing, the trial court imposed a lifetime ban on defendant's ownership, possession or control of "any firearms, deadly weapon, ammunition, or related paraphernalia." The minute order reflects a ban of any "firearm, deadly weapon, ammunition or weapon related paraphernalia or incendiary device." Defendant contends this order is unauthorized and must be stricken. We conclude that the language prohibiting possession of any "deadly weapon," "ammunition," "related paraphernalia," or "incendiary device" is beyond the scope of the court's authority.

Section 29800, subdivision (a)(1), prohibits any person previously convicted of a felony from owning, purchasing, receiving or possessing a firearm. When a person has been convicted of a felony, section 29810 requires that written notification of the firearms restriction must be given at the time of sentencing. However, section 29800, subdivision (a)(1), applies only to firearms, and does not speak to other types of deadly weapons, or to weapons-related paraphernalia. Here, the trial court's order extends beyond firearms and includes any "deadly weapon, ammunition, or related paraphernalia." Moreover, the minutes add "incendiary device" to the list. The quoted language is not authorized by law. When the court imposes a sentence that is not authorized by statute, such error may be corrected on appeal. (People v. Davis (1981) 29 Cal.3d 814, 827, fn. 5; People v. Mitchell (2001) 26 Cal.4th 181, 185-186 [where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls].)

We direct the trial court to modify defendant's sentence by striking the terms "deadly weapon," "ammunition," "related paraphernalia," and "incendiary device" in reference to the prohibition from possessing any firearm, and to issue a new minute order reflecting the change.

C. The Trial Court Improperly Increased the Fines Imposed in Case No. RIF1300474.

Defendant pled guilty in case No. RIF1300474 on February 14, 2013, and received probation. On November 4, 2015, the trial court revoked defendant's probation in case No. RIF1300474, sentenced defendant to one year in state prison, and imposed two fines of $300 each, both of which exceeded the amount of $280 originally imposed. Defendant contends the trial court lacked the authority to increase his fines upon revocation of his probation. The People concede and we agree.

Although the trial court did not address the subject fines, the minutes and the abstract of judgment reflect that the court imposed two $300 fines under section 1202.4, subdivision (b) and 1202.45. --------

Assuming the trial court actually did impose increased fines, it exceeded its statutory authority. (People v. Chambers (1998) 65 Cal.App.4th 819, 820-823 ["a restitution fine imposed at the time probation is granted survives the revocation of probation"; the trial court is "without statutory authority" to impose a second, different restitution fine when probation is revoked]; see People v. Perez (2011) 195 Cal.App.4th 801, 805.) Similarly, because a probation revocation fine must be imposed in the same amount as the restitution fine, the court also lacks the authorization to increase the probation revocation fine. (§ 1202.44; Perez, supra, at p. 805.) The abstract of judgment and minute order in case No. RIF1300474 must be amended to strike the two $300 fines and reflect that both fines imposed were in the amount of $280.

III. DISPOSITION

The $300 restitution fine and the $300 probation revocation fine imposed in case No. RIF1300474 are stricken, and the originally-imposed $280 fines are reinstated. The terms "deadly weapon," "ammunition," "related paraphernalia," and "incendiary device," relating to the prohibition of defendant possessing any firearm, are stricken. The trial court is instructed to modify the abstract of judgment and minute order to reflect these changes and to forward a certified copy of these documents to the appropriate entities. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J. We concur: MILLER

J. SLOUGH

J.