People v. Bocanegra CA6

Filed 12/8/14 P. v. Bocanegra CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039766 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS120728B, SS130298A) v.

ABRAHAM BOCANEGRA,

Defendant and Appellant.

Defendant Abraham Bocanegra pleaded guilty to a count of street terrorism (Pen. Code, § 186.22, subd. (a)), admitted a probation violation, and was sentenced to an aggregate term of six years in prison.1 On appeal, he argues he is entitled to additional presentence credit, because the initial sentencing court failed to designate whether his misdemeanor conviction for a gang crime (§ 186.22) was to be served consecutively or concurrently to his other felony convictions. Therefore, defendant insists that under section 669, his sentence for the misdemeanor conviction must be deemed concurrent, and he is entitled to additional presentence credit for his concurrent terms. We agree and modify the judgment to award him 296 more days of presentence credit. As modified, we affirm the judgment.

1 Further unspecified statutory references are to the Penal Code.

PROCEDURAL BACKGROUND2 Case No. SS120728B On April 23, 2012, a felony complaint was filed charging defendant with residential burglary (§ 459; count 1) with a gang enhancement (§ 186.22, subd. (b)(1)), willful evasion of a police officer in a vehicle (Veh. Code, § 2800.2, subd. (a); count 2) with a gang enhancement (§ 186.22, subd. (b)(1)), resisting, delaying or obstructing a police officer (§ 148, subd. (a)(1); count 3) with a gang enhancement (§ 186.22, subd. (d)), and street terrorism (id., subd. (a); count 4). On May 31, 2012, defendant pleaded no contest to count 1 (residential burglary, § 459), count 2 (willful evasion of a police officer in a vehicle, Veh. Code, § 2800.2, subd. (a)), and count 4 (street terrorism, § 186.22, subd. (a)). Count 4 (hereafter referred to as the “misdemeanor gang crime”) was reduced to a misdemeanor on motion by the People. Pursuant to a negotiated agreement, defendant was to receive a term in prison of four years eight months, with execution of the sentence suspended. He also acknowledged he would serve one year in county jail, which would include the six-month mandatory minimum sentence for the misdemeanor gang crime (§ 186.22, subds. (a), (c)). During the hearing, the People stated that “[t]he agreement was [defendant] was going to serve 365 days in jail as well.” Defendant was to be placed on formal probation, and the remaining counts were to be dismissed at his sentencing. On August 7, 2012, defendant was sentenced to an aggregate term of four years eight months in prison with execution of the sentence suspended. This aggregate prison term was comprised of four years for the conviction for residential burglary (count 1) consecutive to eight months for the conviction for willful evasion of a police officer