Filed 7/29/14 P. v. Deville CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B251839

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA050416)
         v.

PATRICK DEVILLE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Bernie
LaForteza. Affirmed as modified; remanded with directions.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
                                   _______________________________
       This is the second time this case has been before this court since a jury found
Patrick Deville guilty of forcible rape, unlawful sexual intercourse with a minor, oral
copulation of a minor, administering a controlled substance to a minor and administering
a controlled substance. In December 2011, after finding prior conviction allegations to
be true, the trial court sentenced Deville to 85 years to life in prison.
       In the first appeal (No. B238053), this court reversed Deville’s conviction for
administering a controlled substance because it is a lesser included offense of
administering a controlled substance to a minor. We also vacated Deville’s sentence and
remanded the matter for a new sentencing hearing, after striking certain enhancements
and finding the trial court misunderstood the scope of its discretion to impose concurrent
terms on count 1 for forcible rape and count 2 for administering a controlled substance to
a minor. (People v. Deville (May 16, 2013, B238053) [nonpub. opn.].)
       In the present appeal, Deville contends the trial court erred in imposing
consecutive terms on counts 1 and 2 at the resentencing hearing. He argues it was
impermissible for the court to base the consecutive terms on its own factual findings the
offenses involved separate objectives. He asserts a jury must make such factual findings.
We reject this contention under United States and California Supreme Court authority set
forth below.
       Deville also contends, and the Attorney General concedes, the trial court erred in
failing to recalculate his presentence custody credits as of the date of the resentencing
hearing. We agree, and remand the matter for correction of this error as well as other
errors in the abstract of judgment specified below.
                                      BACKGROUND
       In the prior appeal, we struck prior serious felony enhancements under Penal Code
                                 1
section 667, subdivision (a)(1), imposed on count 2 for administering a controlled
substance to a minor. We also struck a prior sex offense enhancement under section
667.6, subdivision (a), imposed on count 1 for forcible rape. We ordered the sentence

       1
           Statutory references are to the Penal Code unless otherwise indicated.

                                               2
imposed on count 4 for unlawful sexual intercourse with a minor stayed under section
654. We vacated Deville’s sentence and remanded the matter for resentencing due to our
finding the trial court misunderstood the scope of its discretion to impose concurrent
terms on counts 1 and 2. We expressed no opinion on whether the court should impose
concurrent or consecutive terms on counts 1 and 2 in the exercise of its discretion.
(People v. Deville, supra, B238053, pp. 14, 15.)
       On October 10, 2013, the trial court held the resentencing hearing. The court
exercised its discretion in deciding to impose consecutive terms on count 1 for forcible
rape and count 2 for administering a controlled substance to a minor. The court found
“[t]he crime and their objectives were predominantly independent of each other.” (Cal.
Rules of Court, rule 4.425(a)(1) [criteria affecting concurrent or consecutive sentences].)
The court noted the evidence showed Deville asked the minor victim if she wanted to
inject methamphetamine and she responded affirmatively. Deville then assisted her in
inserting the needle into her arm and injecting the drugs. He did not force her to take the
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methamphetamine. Thereafter, however, he forcibly raped her.
       The trial court resentenced Deville to 65 years to life in prison. On count 1 for
forcible rape (§ 261, subd. (a)(2)), the court imposed a term of 40 years to life: 25 years
to life for the offense under the “Three Strikes” law, plus a consecutive term of 15 years
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for the three prior serious felonies under section 667, subdivision (a)(1). The court also
imposed, but stayed three one-year prior prison term enhancements under section 667.5,




       2
          As the parties point out in their briefing, a recitation of the evidence presented at
trial is not necessary for our resolution of the issues on appeal. To provide context for the
trial court’s finding, however, we explain the 16-year-old victim met 50-year-old Deville
at a park. Before agreeing to inject methamphetamine, the victim talked to Deville for
two hours about problems she was experiencing as a foster child in the foster care system.
(People v. Deville, supra, B238053, pp. 2-3.)
       3
         In the prior appeal, we did not strike the prior serious felony enhancements as to
count 1, only as to count 2.

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subdivision (b). On count 2 for administering a controlled substance to a minor (Health
                        5
& Saf. Code, § 11380), the court imposed a consecutive term of 25 years to life. On
count 4 for unlawful sexual intercourse with a minor (§ 261.5, subd. (c)), the court
imposed a term of 25 years to life, but stayed it under section 654. On count 5 for oral
copulation of a minor (§ 288a, subd. (b)(1)), the court imposed a concurrent term of 25
years to life.
                                      DISCUSSION
Consecutive Sentencing on Counts 1 and 2
       Deville contends the trial court erred in imposing consecutive terms on counts 1
and 2 at the resentencing hearing, arguing it was impermissible for the court to base the
consecutive terms on its own factual findings the offenses involved separate objectives.
He asserts a jury must make such factual findings under the United States Supreme
Court’s rationale in Apprendi v. New Jersey (2000) 530 U.S. 466. He does not challenge
the sufficiency of the evidence supporting the court’s findings.
       As Deville acknowledges, in Oregon v. Ice (2009) 555 U.S. 160, 163-164, the
United States Supreme Court held the Sixth Amendment does not require jury
determination of facts supporting the imposition of consecutive rather than concurrent
sentences for multiple offenses. It is permissible for judges to make these factual
findings. (In re Coley (2012) 55 Cal.4th 524, 557, fn. 18 [in Oregon v. Ice, supra, 555
U.S. 160 “the high court held the Apprendi line of decisions does not apply to factual

       4
          As Deville has pointed out, the October 15, 2013 abstract of judgment, does not
reflect the trial court stayed the three prior prison term enhancements. We direct the trial
court to correct this error.
       5
         In the prior appeal, we directed the trial court to correct the abstract of judgment
to reflect that the conviction for administering a controlled substance to a minor (count 2)
is a violation of Health and Safety Code section 11380 (not a violation of Health & Saf.
Code, § 11353 as listed in the original abstract of judgment). (People v. Deville, supra,
B238053, p. 4, fn. 2 & p. 15.) As the parties have pointed out, the court did not correct
the error and it appears in the October 15, 2013 abstract of judgment. We again direct the
court to correct this error in the abstract of judgment.

                                             4
findings that bear on the question whether multiple sentences are to be imposed
consecutively or concurrently”]; People v. DeHoyos (2013) 57 Cal.4th 79, 152, fn. 20
[same].)
       Deville asks this court to register its disagreement with the United States Supreme
Court’s decision in Oregon v. Ice, supra, 555 U.S. 160. We decline to do so.
Presentence Custody Credits
       Deville contends, and the Attorney General concedes, the trial court erred in
failing to recalculate his presentence custody credits as of the date of his resentencing
hearing. The October 15, 2013 abstract of judgment, reflects an award of presentence
custody credits based on the number of days Deville had spent in custody as of December
20, 2011, the date of the initial sentencing hearing. On remand, to the extent it has not
done so already, we direct the trial court to recalculate Deville’s presentence custody
credits to reflect the total number of actual days Deville had spent in custody as of
                                                        6
October 10, 2013, the date of his resentencing hearing. (People v. Buckhalter (2001) 26
Cal.4th 20, 41 [“the trial court, having modified defendant’s sentence, should have
determined all actual days defendant had spent in custody, whether in jail or prison, and
awarded such credits in the new abstract of judgment”].)
                                      DISPOSITION
       The matter is remanded for the trial court (1) to correct the abstract of judgment to
reflect the three prior prison term enhancements under section 667.5, subdivision (b),
imposed on count 1 are stayed, (2) to correct the abstract of judgment to reflect that the
conviction for administering a controlled substance to a minor (count 2) is a violation of
Health and Safety Code section 11380 (not a violation of Health & Saf. Code, § 11353),
and (2) to recalculate Deville’s presentence custody credits to reflect the total number of
actual days Deville had spent in custody as of October 10, 2013, the date of his


       6
         On or about January 23, 2014, Deville filed in the trial court a motion for
correction of his presentence custody credits. At the time he submitted his briefing in this
appeal, he represented the trial court had not made the correction.

                                              5
resentencing hearing. In all other respects, the judgment is affirmed. The clerk of the
superior court is directed to prepare an amended abstract of judgment and to forward it to
the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED.




                                                               CHANEY, J.
We concur:



              ROTHSCHILD, P. J.



              MILLER, J.*




       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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