People v. Rogers CA6

Filed 12/13/24 P. v. Rogers CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051287 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C9937403)

v.

CHARLES ALLEN ROGERS,

Defendant and Appellant.

Charles Allen Rogers appeals a postjudgment order denying his motion under Penal Code section 1172.751 to recall his sentence, remove a prior prison term enhancement (prison prior) imposed pursuant to section 667.5, former subdivision (b), and be resentenced. The trial court denied Rogers’s motion on the ground that relief under section 1172.75 is unavailable when the punishment on a prison prior has been stayed. The trial court and the parties assumed (based upon the abstract of judgment) that the trial court at Rogers’s sentencing had imposed but stayed the punishment on the prison prior. This court obtained the reporter’s transcript of the sentencing hearing, and it is now clear that the sentencing court in fact dismissed the prison prior. After reviewing

1 All further unspecified statutory references are to the Penal Code.

this additional information, the parties agree that Rogers is not entitled to a recall of his sentence and resentencing under section 1172.75. They also assert that the abstract of judgment must be corrected. We agree. We affirm the trial court’s order denying Rogers’s request to be resentenced but order a correction to the abstract of judgment. I. PROCEDURAL BACKGROUND2 In February 2000, a jury found Rogers guilty of one count of pandering a minor under the age of 16 (§ 266i, subd. (b)), two counts of lewd and lascivious acts on a child under 14 years old (§ 288, subd. (a)), one count of pimping where the prostitute is under 16 years old (§ 266h, subd. (b)), and one count of pimping (§ 266h, subd. (a)). With respect to prior convictions, the information alleged that Rogers had suffered three prior convictions for violent or serious felonies (strike priors) (§§ 667, subd. (b)–(i); 1170.12), one prior serious felony conviction (§ 667, subd. (a)), and a prior prison term (prison prior) (§ 667.5, former subd. (b).) At Rogers’s initial sentencing, the trial court dismissed the prison prior and declined to strike the strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. (See People v. Rogers (Dec. 12, 2002) H021676 [nonpub. opn.].) Rogers appealed, alleging a variety of errors in his trial and sentencing. This court reversed the judgment and remanded for resentencing but otherwise affirmed the convictions. (Ibid.) On remand from this court for resentencing, in May 2003 the superior court sentenced Rogers under the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12) to an