California Court of Appeal Dec 10, 2013 No. E057660Unpublished
Filed 12/10/13 P. v. Romero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057660
v. (Super.Ct.Nos. RIF1204513 & RIF1205245) ENRIQUE MURO ROMERO, OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed in part, reversed in part; remanded with directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Michael T. Murphy and James
D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a jury trial, defendant Enrique Muro Romero was convicted of one
count of aggravated sexual assault of a child under the age of 14 (Pen. Code,1 § 269,
subd. (a)(4); count 1) and three counts of lewd or lascivious acts against a child under the
age of 14 (§ 288, subd. (a); counts 2, 3 & 4). The jury further found true the allegation
Rodriguez, this court explained that section 669 sets forth the general rule that sentencing
courts have discretion to impose consecutive or concurrent sentences; however, it noted
the presumption in favor of discretion applies “[a]bsent an express statutory provision to
the contrary . . . .” (Rodriquez, supra, at p. 1262.)
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As both parties agree, the trial court retained discretion to impose either
consecutive or concurrent terms. (Rodriguez, supra, 130 Cal.App.4th at pp. 1262-1263.)
If a court is unaware of its sentencing discretion, the matter must be remanded except
where remand would be “an idle and unnecessary, if not pointless, judicial exercise.”
(People v. Coelho (2001) 89 Cal.App.4th 861, 889; see also People v. Deloza (1998) 18
Cal.4th 585, 599-600.) Here, the trial court imposed consecutive sentences under the
misapprehension that the One Strike law (§ 667.61) mandated consecutive sentencing.
Since there is no indication in this record that remand would be an idle act, we must
reverse this portion of the sentence and remand the matter to the trial court for
resentencing solely on the issue of whether, in the exercise of the court’s discretion,
defendant must serve those three indeterminate terms concurrently or consecutively. (See
People v. Coelho, supra, p. 889; Rodriguez, supra, at p. 1262.)
III. CUSTODY CREDITS AND ERRORS IN THE ABSTRACT OF JUDGMENT
Defendant contends, and the People concede, that he was entitled to presentence
custody credits of 371 days and that the abstract of judgment should be corrected to
accurately reflect this award of the credits, and that counts 3 and 4 were committed in
2011, not 2005.
A. Custody Credits
At sentencing, the trial court imposed sentence but failed to calculate defendant’s
presentence custody credits. The court minutes correctly ordered 323 actual days for
time served, plus 48 days of good custody credits, for a total of 371 days. The abstract of
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judgment incorrectly notes the total credits were 37 days. According to the probation
report, defendant was arrested on January 13, 2012, and he was sentenced on November
30, 2012, which results in 323 actual days and 48 good conduct days under section
2933.1,2 for a total of 371 days. The trial court erred in failing to award presentence
custody credits to defendant. Because the case is being remanded for resentencing on
counts 2, 3, and 4, we also order the court to remedy its error. Likewise, we direct the
clerk to correct the abstract of judgment.
B. The Year Counts 3 and 4 were Committed
Finally, the abstract of judgment stated that counts 3 and 4 were committed in
2005. However, these two counts were actually committed in 2011. It is evident that the
superior court clerk inadvertently erred in recording the year in which counts 3 and 4
were committed. Generally, a clerical error is one inadvertently made. (People v. Schultz
(1965) 238 Cal.App.2d 804, 808.) A court “has the inherent power to correct clerical
errors in its records so as to make these records reflect the true facts. [Citations.]” (In re
Candelario (1970) 3 Cal.3d 702, 705.) Accordingly, we direct the clerk to correct the
abstract of judgment.
2 When a defendant is sentenced to an indeterminate term for a violent felony (§ 667.5), he or she is entitled to presentence custody credits for actual time served plus good conduct credits under section 2933.1, of no more than 15 percent of the actual days. (People v. Duff (2010) 50 Cal.4th 787, 793-794; §§ 2900.5, subd. (d), 2933.1, subds. (a) & (c), 4019.)
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IV. DISPOSITION
The imposed sentence on counts 2, 3 and 4 is reversed and the matter is remanded.
The trial court is directed to conduct a new sentencing hearing, where it may exercise its
discretion in selecting between consecutive and concurrent sentences on counts 2, 3, and
4, and include an award custody credits. An amended abstract of judgment should reflect
custody credits of 371 days and correctly state that counts 3 and 4 were committed in
2011. The amended abstract of judgment shall be forwarded to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:
RAMIREZ P.J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court erred by failing to exercise its sentencing discretion under the One Strike law, erroneously believing consecutive sentences were mandatory. Consequently, the case was remanded for resentencing on counts 2, 3, and 4, and for the correction of clerical errors regarding custody credits and offense dates.
Issues
Whether the trial court abused its discretion by failing to recognize its authority to impose concurrent rather than consecutive sentences under the One Strike law.
Whether the trial court erred in failing to award the correct amount of presentence custody credits.
Whether the abstract of judgment contained clerical errors regarding the dates of the offenses.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“The record shows the trial court imposed consecutive sentences under the misapprehension that the One Strike law (§ 667.61) mandated full, consecutive sentencing.”
“The trial court retained discretion to impose either consecutive or concurrent terms.”
“The trial court erred in failing to award presentence custody credits to defendant.”