People v. Gutierrez CA6

Filed 1/30/15 P. v. Gutierrez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040806 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1234852, C1242351)

v.

ROY GUTIERREZ,

Defendant and Appellant.

On March 12, 2013, in case No. C1242351 (hereafter the robbery case) Roy Gutierrez (appellant) pleaded guilty to two counts of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).)1 Appellant admitted that he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)), and that he had suffered a prior strike conviction as a juvenile. After granting appellant’s Romero motion2 to strike the juvenile strike adjudication, on June 7, 2013, the court sentenced appellant to two years in prison, awarded him credit for time served of 282 days and imposed a restitution fine of $240. The court struck the punishment for the gang allegation. Subsequently, in case No. C1234852 (hereafter the drug case)3 while appellant was serving his sentence in the robbery case, appellant asked the court to exercise its

1 All unspecified section references are to the Penal Code. 2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 3 Back on June 19, 2012, the Santa Clara County District Attorney had filed a (continued)

discretion under section 1385 to strike his juvenile strike adjudication before sentencing him in his drug case.4 On November 20, 2013, the court denied the request. On January 31, 2014, the court imposed an aggregate term of 44 months for both the drug case and the robbery case. The court imposed the low term of 16 months for the drug conviction, doubled to 32 months because of the strike. The court imposed a consecutive sentence of one year on one of the robbery counts (one third the midterm) and a concurrent two-year term on the second robbery count. Relevant to the issues on appeal, in the drug case, the court awarded appellant 550 days of custody credits—479 actual days and 71 days of conduct credits. In the robbery case, the court imposed fines and fees ordered by the original sentencing judge in the robbery case, except the court increased the restitution fine and parole revocation fine to $480 each. On appeal, appellant argues that the court lacked authority to increase the restitution fine and parole revocation fine in the robbery case when the court resentenced him. Furthermore, he argues that he is entitled to an additional six days of custody credit in the drug case. Discussion5 Increase in Fines Relying on California Rules of Court, rule 4.452.3, appellant argues that in resentencing him, the court had no authority to increase the restitution fine and parole