People v. Joaquin CA1/2

Filed 10/2/14 P. v. Joaquin CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A139543 v. FERNANDO D. JOAQUIN, (Mendocino County Super. Ct. No. MCUKCR1270703) Defendant and Appellant.

The trial court desired to permit appellant to serve his sentence in local custody rather than in state prison, believing that doing so was consistent with the purpose of the Criminal Justice and Realignment Act (Pen. Code, § 1170, subd. (h) (the Realignment Act)). 1 Acknowledging that such a ruling was inconsistent with the recent opinion in People v. Delgado (2013) 214 Cal.App.4th 914 (Delgado), the court initially ordered appellant to be confined in local custody rather than state prison because it believed this served the interests of justice and Delgado was wrongly decided. Several weeks later, after the California Supreme Court denied a petition for review in Delgado, the court recalled the sentence and ordered appellant to serve his sentence in state prison, reluctantly adopting the conclusion of the Delgado court. Appellant claims that Delgado was wrongly decided and the trial court’s initial ruling was correct, and that recalling his sentence and resentencing him to state prison was an abuse of discretion because denial of the petition for review in Delgado was “not

1 All subsequent statutory references are to the Penal Code.

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an expression of opinion of the Supreme Court on the merits of the case.” (Camper v. Workers’ Compensation Appeals Bd. (1992) 3 Cal.4th 679, 689, fn. 8.) BACKGROUND Appellant, Fernando D. Joaquin, who was 18 years of age at the time, was charged by the Mendocino County District Attorney with robbery (Pen. Code, § 211), a serious felony within the meaning of section 1192.7, subdivision (c). The information also alleged appellant had suffered prior juvenile adjudications for preventing report of a crime (§ 136.1, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)), both of which are “serious” felonies within the meaning of sections 667 and 1170.12. Under the Three Strikes law, a person convicted of a felony with such a prior juvenile adjudication must be sentenced to state prison. (§ 667, subd. (c)(4).) The robbery charge was on March 30, 2013, amended to grand theft from a person on the basis of a negotiated plea. (§ 487, subd. (c).) Appellant pled guilty to the amended charge and admitted the prior strike for a stipulated 16-month low-term sentence doubled to 32 months. Prior to sentencing, defense counsel contended in her Sentencing Memorandum that “the stipulated prison commitment, housing [appellant] at our local county jail ‘prison’ does not contradict the mandates of the Three Strike initiatives treatment of felons with juvenile strike adjudications.” The trial court initially agreed. At the sentencing hearing on May 17, 2013, the court ordered confinement in the Mendocino County jail. On June 26, 2013, roughly one month later, the trial court recalled the sentence (§ 1170, subd. (d)) based on the decision of the California Supreme Court to deny the petition for review in Delgado, supra, 214 Cal.App.4th 914. The issue before us here is simply whether, as appellant claims, Delgado was incorrectly decided. As the underlying facts pertinent to appellant’s offense are not relevant to this legal issue, we deem it appropriate to simply reiterate the People’s concise summarization: “appellant stole a 15-year-old girl’s cell phone. Appellant’s cousin beat the girl, and appellant video-recorded the assault on the stolen phone.”