People v. Mora

California Court of Appeal Jun 17, 2002 No. No. D039073; No. D039527Published

Before: Huffman

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Holding. The court held that the trial court erred by amending the defendant's sentence in his absence and remanded the matter for resentencing in the defendant's presence.

Issues

Whether the trial court erred by amending the abstract of judgment in the defendant's absence.
Whether increasing the defendant's sentence violates double jeopardy protections.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“The People agree that the trial court erred in resentencing him in his absence.”

“The convictions are affirmed. The sentence is reversed and matter is remanded for resentencing in Mora’s presence.”

Opinion

HUFFMAN, J. In 1995 in superior court case No. SF87558, a jury convicted Louie F. Mora of assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 while personally using a firearm (§ 12022.5) and inflicting great bodily injury (§ 12022.7), being a felon in possession of a firearm (§ 12021, subd. (a)), making a terrorist threat (§ 422), false imprisonment (§§ 236/ 237), assault with a deadly weapon (§ 245, subd. (a)(1)), inflicting corporal injury on a spouse or cohabitant (§ 273.5), and dissuading a witness by force (§ 136.1, subd. (c)(1)). In superior court case No. SF90038 Mora entered a negotiated guilty plea to possessing marijuana for sale (Health & Saf. Code, § 11359). The court sentenced him to 14 years four months in prison: the four-year upper term for assault with a firearm enhanced five years for personal firearm use, with consecutive eight-month terms for being a felon in possession of a firearm and making a terrorist threat (one-third the middle term), one year for assault with a deadly weapon (one-third the middle term) enhanced one year four months for personally using a firearm (one-third the middle term), one year for dissuading a witness (one-third the middle term), and eight months for possessing marijuana for sale in case No. SF90038 (one-third the middle term). In June 2001, the Department of Corrections advised the trial court that section 1170.15 provides for a full consecutive three-year term for dissuading a witness. On July 3, 2001, the trial court amended the abstract of judgment, ex parte, to provide for a full three-year term for dissuading a witness.

In both the appeal and habeas corpus petition Mora contends amending the abstract of judgment in his absence was error and that increasing his [399]sentence places him in double jeopardy. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305 [28 Cal.Rptr.2d 172].) The People agree that the trial court erred in resentencing him in his absence. (People v. Arbee (1983) 143 Cal.App.3d 351, 356 [192 Cal.Rptr. 13].) We remand for resentencing and choose not to consider the double jeopardy issue absent a full record of the proceedings on remand.

Mora’s February 2002 motion to vacate the judgment, treated as a petition for writ of habeas corpus, raises the same issues as the appeal. In light of our decision to remand for resentencing, the petition is dismissed as moot.

Disposition

The convictions are affirmed. The sentence is reversed and matter is remanded for resentencing in Mora’s presence.

People v. Mora

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