The People v. Watts CA3

Filed 9/23/13 P. v. Watts CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C071486

v. (Super. Ct. No. 62002697)

JAMES ROBERT WATTS,

Defendant and Appellant.

A jury convicted defendant James Robert Watts in 1999 of four counts of forcible rape (Pen. Code, § 261, subd. (a)(2)),1 penetration by a foreign object (§ 289, subd. (a)), assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)), attempting to dissuade a witness (§ 136.1, subd. (c)(1)), and misdemeanor battery (§ 242). (People v. Watts (Dec. 15, 2000, C034074) [nonpub. opn.] at p. 1.) The jury also sustained great bodily injury, deadly weapon and one strike allegations against

1 Undesignated statutory references are to the Penal Code.

1

defendant (§§ 12022.8, 12022.7, subd. (a), 12022.3, subd. (a), 12022, subd. (b)(1), former 667.61, subds. (a), (b), and (e)). The trial court sentenced defendant to 117 years to life in prison. In an unpublished opinion, this court struck a one year weapons enhancement and affirmed the judgment as modified. (People v. Watts, supra, C034074 [nonpub. opn.] at p. 11.) The California Department of Corrections and Rehabilitation (CDCR) subsequently sent a letter to the trial court in May 2012 identifying an error in defendant’s sentence. The letter said the trial court imposed a consecutive one-year term (one-third the three year middle term) on count four [attempting to dissuade a witness by force] (§ 136.1, subd. (c)(1)), but section 1170.15 provides that if a consecutive term is imposed for a violation of section 136.1, the trial court must impose a full middle term. At a June 20, 2012 resentencing hearing, the trial court modified the sentence to impose a three-year consecutive term for the section 136.1 conviction on count four. The trial court prepared an amended abstract of judgment reflecting the modified judgment. Defendant appeals, arguing he must be resentenced again because (1) the trial court did not understand that it had discretion to impose a concurrent term on count four, (2) defense counsel was ineffective in failing to argue for a lower sentence at resentencing, and (3) the amended abstract of judgment must be corrected to reflect defendant’s time in custody before resentencing. We conclude (1) given the context of the trial court’s statements at resentencing, the trial court understood and properly exercised its discretion; (2) defendant’s claim of ineffective assistance fails because he has not established prejudice; and (3) we will remand the matter and direct the trial court to calculate and award any presentence credit to which defendant is entitled. In all other respects we will affirm the judgment.