California Court of Appeal Apr 14, 2021 No. E074069Unpublished
Filed 4/14/21 P. v. Stein 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074069
v. (Super.Ct.No. RIF1803594)
JAMES ROY STEIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed in part, reversed in part, and remanded for resentencing.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Robin Urbanski and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 2, 2019, an amended information charged defendant and appellant James
Roy Stein with making criminal threats under Penal Code1 section 422 (counts 1, 2, 3),
omitted.) Under section 1170.15, “if a defendant is convicted of a felony, and he or she
is also convicted of dissuading a witness from reporting or testifying about the first
felony, then the trial court must impose a full-term sentence for the dissuading a witness
conviction instead of the normal one-third the midterm for a second felony.”
(Woodworth, at p. 147, italics added.) Under section 1170.15, the court maintains its
discretion to impose concurrent or consecutive terms, but if it chooses to impose a
consecutive sentence, that sentence must be full term, not one-third the midterm.
(Woodworth, at pp. 1479-1480.) Therefore, in this case, the trial court’s reliance on
section 1170.15 to impose a consecutive sentence for count 5 was misplaced.
6
When a trial court sentences a defendant on the erroneous assumption that it
lacked discretion to impose a concurrent sentence, remand is necessary to permit the trial
court the opportunity to exercise its sentencing discretion. (People v. Brown (2007) 147
Cal.App.4th 1213, 1228.) Notwithstanding, remand is not necessary where it would be
“an idle and unnecessary, if not pointless, judicial exercise.” (People v. Coelho (2001) 89
Cal.App.4th 861, 889.)
Here, the People argue that “because consecutive sentences were in fact
mandatory, albeit pursuant to a different provision than the one cited by the court, remand
would be an idle act, and is unnecessary.” In support of their argument, the People
contend that the trial court was mandated to sentence defendant consecutively under
section 1170.12, subdivision (a)(7). We disagree; section 1170.12 is not applicable to
this case.
Section 1170.12, subdivision (a)(7), states that “[n]otwithstanding any other
provision of law, if a defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior serious and/or violent felony
convictions, as defined in subdivision (b), the court shall adhere to each of the following:
[¶] . . . [¶] (7) If there is a current conviction for more than one serious or violent felony
as described in subdivision (b), the court shall impose the sentence for each conviction
consecutive to the sentence for any other conviction for which the defendant may be
consecutively sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(7),
italics added.)
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The language of section 1170.12, subdivision (a) is clear that the section only
applies when “it has been pled and proved that the defendant has one or more prior
serious and/or violent felony convictions.” (§ 1170.12, subd. (a).) Here, it was neither
pled nor proven that defendant had any prior serious and/or violent felony convictions.
The only prior conviction allegations were for prior prison terms under former section
667.5, subdivision (b), which the trial court ultimately dismissed.
In their brief, however, the People only rely on the language set forth in subsection
(7) of section 1170.12, subdivision (a), and simply ignore the language in subdivision (a),
which stated that section 1170.12 only applies in cases where “a defendant has been
convicted of a felony and it has been pled and proved that the defendant has one or more
prior serious and/or violent felony convictions, as defined in subdivision (b).”
(§ 1170.12, subd. (a).) Therefore, there is no authority to support the People’s claim that
the trial court was mandated to sentence defendant to a consecutive term for count 5
under section 1170.12.
In sum, both defendant and the People agree that section 1170.15 did not mandate
that the trial court sentence defendant consecutively on count 5. Moreover, the error was
not harmless because section 1170.12 does not apply to defendant. Therefore, the case
should be remanded to the trial court so that the court may exercise its discretion to
impose either consecutive or concurrent terms.
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DISPOSITION
The case is remanded to the trial court for resentencing so it may exercise its
discretion to impose either consecutive or concurrent terms. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
SLOUGH J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court erred by sentencing the defendant to consecutive terms under the mistaken belief that Penal Code section 1170.15 mandated such a sentence, requiring a remand for the court to exercise its sentencing discretion.
Issues
Did the trial court err in concluding that Penal Code section 1170.15 mandated the imposition of consecutive sentences?
Does Penal Code section 1170.12 mandate consecutive sentencing for this defendant?
Disposition. Affirmed in part, reversed in part, and remanded for resentencing.
Quotations verified verbatim against the opinion
“the trial court’s reliance on section 1170.15 to impose a consecutive sentence for count 5 was misplaced.”
“When a trial court sentences a defendant on the erroneous assumption that it lacked discretion to impose a concurrent sentence, remand is necessary to permit the trial court the opportunity to exercise its sentencing discretion.”
“The case is remanded to the trial court for resentencing so it may exercise its discretion to impose either consecutive or concurrent terms.”