People v. Deville CA2/1

Filed 7/29/14 P. v. Deville CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B251839

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA050416) v.

PATRICK DEVILLE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Bernie LaForteza. Affirmed as modified; remanded with directions. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________

This is the second time this case has been before this court since a jury found Patrick Deville guilty of forcible rape, unlawful sexual intercourse with a minor, oral copulation of a minor, administering a controlled substance to a minor and administering a controlled substance. In December 2011, after finding prior conviction allegations to be true, the trial court sentenced Deville to 85 years to life in prison. In the first appeal (No. B238053), this court reversed Deville’s conviction for administering a controlled substance because it is a lesser included offense of administering a controlled substance to a minor. We also vacated Deville’s sentence and remanded the matter for a new sentencing hearing, after striking certain enhancements and finding the trial court misunderstood the scope of its discretion to impose concurrent terms on count 1 for forcible rape and count 2 for administering a controlled substance to a minor. (People v. Deville (May 16, 2013, B238053) [nonpub. opn.].) In the present appeal, Deville contends the trial court erred in imposing consecutive terms on counts 1 and 2 at the resentencing hearing. He argues it was impermissible for the court to base the consecutive terms on its own factual findings the offenses involved separate objectives. He asserts a jury must make such factual findings. We reject this contention under United States and California Supreme Court authority set forth below. Deville also contends, and the Attorney General concedes, the trial court erred in failing to recalculate his presentence custody credits as of the date of the resentencing hearing. We agree, and remand the matter for correction of this error as well as other errors in the abstract of judgment specified below. BACKGROUND In the prior appeal, we struck prior serious felony enhancements under Penal Code 1 section 667, subdivision (a)(1), imposed on count 2 for administering a controlled substance to a minor. We also struck a prior sex offense enhancement under section 667.6, subdivision (a), imposed on count 1 for forcible rape. We ordered the sentence