Filed 7/23/14 P. v. Ward CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066792
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10905141)
                   v.

ANTHONY DERRICK WARD,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
         Han N. Tran, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Charity S. Whitney, Deputy Attorneys General, for Defendant and Respondent.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Cornell, J. and Franson, J.
       A jury convicted appellant, Anthony Derrick Ward, of two counts of second
degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);1 counts 1, 2) and one count of
reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 3),
and found true allegations that in committing each of the robberies, appellant personally
used a dangerous or deadly weapon (§ 12022, subd. (b)(1)). The jury also found true
allegations that appellant had suffered two prior serious felony convictions within the
meaning of section 667, subdivision (a) and 11 “strikes,”2 and that he had served six
separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
       The court imposed terms of 25 years to life on each of counts 1 and 2, and ordered
the terms to run consecutively. On the count 1 enhancements, the court imposed terms of
five years on each of the two prior serious felony enhancements; one year on the
accompanying weapon use enhancement, and one year on each of four prior prison term
enhancements, and on the count 2 enhancements, the court imposed terms of five years
on each of the two prior serious felony enhancements, and struck the weapon use and
prior prison term enhancements. The court ordered that the total 25-year determinate
term on the enhancements be served prior to the indeterminate terms. The court also
imposed a concurrent six-year term on count 3, consisting of the three-year upper term,
doubled pursuant to the Three Strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).
       On appeal, appellant argues that the court mistakenly believed it did not have the
discretion to impose concurrent sentences on the count 1 and count 2 substantive offenses
and, therefore, remand for resentencing is required. We vacate the sentence, remand for
resentencing, and otherwise affirm.

1      Except as otherwise indicated, all statutory references are to the Penal Code.
2       We use the term “strike” as a synonym for a “prior felony conviction” within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), i.e., a
prior felony conviction or juvenile adjudication that subjects a defendant to the increased
punishment specified in the Three Strikes law.



                                             2.
                  FACTUAL AND PROCEDURAL BACKGROUND
Facts
        Because appellant does not challenge the sufficiency of the evidence and his sole
contention on appeal relates to sentencing, we present an abbreviated account of the facts
of the instant offenses: At approximately 6:40 p.m. on October 7, 2010, Lorenzo
Hernandez and Lorena Alvarez were working behind the counter at a “Rent-A-Center”
store in Fresno when appellant entered the store, wearing a mask and carrying a handgun.
Appellant pointed the gun at Hernandez and Alvarez and demanded the cash in the
register and two laptop computers that were on the counter. Hernandez handed over the
laptops and Alvarez handed over all the cash in the register, approximately $800.
Appellant then ordered Alvarez and Hernandez to get down on the floor, at which point
appellant left the store. After appellant left, Hernandez called 911, and police
apprehended appellant a short time later. In the car appellant had been driving, police
found a black BB gun and two laptop computers, one of which had a “Rent-A-Center”
sticker on it.
Procedural Background
        The probation officer, in her December 28, 2012, written report (RPO), under the
heading “RULE 4.421: CIRCUMSTANCES IN AGGRAVATION,”3 quoting, respectively,
subparts (a)(8), (b)(1), (b)(2) and (b)(5) of rule 4.421, listed the following: “The manner
in which the crime was carried out indicates planning, sophistication or professionalism”;
“The defendant has engaged in violent conduct [which] indicates a serious danger to
society”; “The defendant’s prior convictions as an adult or sustained petitions in juvenile
delinquency proceedings are numerous or of increasing seriousness”; and “The


3      California Rules of Court, rule 4.421 consists of a list of circumstances in
aggravation relating to the crime and to the defendant. All rule references are to the
California Rules of Court.



                                             3.
defendant’s prior performance on probation or parole was unsatisfactory.” The officer
found there were no circumstances in mitigation (rule 4.423).
       Immediately thereafter, under the heading for “RULE 4.425: CRITERIA AFFECTING
CONCURRENT OR CONSECUTIVE SENTENCING,” the officer stated: “Pursuant to P[enal ]
C[ode section] 667[, subdivision ](c)(7), the terms for Counts One and Two are mandated
to be served consecutively.”4 The officer recommended imposition of consecutive
sentences on counts 1 and 2.
       At the first sentencing hearing, on January 9, 2013, the court, after hearing
argument from counsel, found the same four circumstances in aggravation found by the
probation officer. And, as did the probation officer, the court found there were no
circumstances in mitigation. Immediately thereafter, the court stated: “Rule 4.425,
criteria affecting concurrent or consecutive sentences, under (b), pursuant to Penal Code
Section 667[, subdivision ](c)(7), the terms for Count One and Two are mandated to be
served consecutively.”
       The court went on to impose consecutive sentences of 25 years to life on counts 1
and 2 plus a total of 25 years four months on the enhancements.
       On February 28, 2013, the probation officer filed a supplemental written report
(SRPO) in which she stated she had made an “error” in recommending a four-month term
on the count 2 weapon use enhancement, and that she failed to make a recommendation
on whether to impose or strike the prior prison term enhancements alleged in connection
with count 2.5 In the SPRO, the probation officer recommended that the court strike the


4      Section 667, subdivision (c)(7) provides: “If there is a current conviction for more
than one serious or violent felony as described in paragraph (6), 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.”
5      At the January 2013 sentencing, the court did not impose sentence on the count 2
prior prison term enhancements, but neither did the court strike those enhancements.



                                             4.
count 2 weapon use enhancement and prior prison term enhancements, and again
recommended imposition of consecutive 25-year-to-life terms on counts 1 and 2.
       A resentencing hearing was conducted on February 28, 2013. At that hearing, as
indicated above, the court, as recommended in the SPRO, imposed consecutive 25-year-
to-life terms on each of counts 1 and 2, and struck four prior prison term enhancements as
to both counts 1 and 2 and the count 2 weapon use enhancement. The court did not
repeat its statement that consecutive sentences on counts 1 and 2 were “mandated.”
                                     DISCUSSION
       Appellant contends the court mistakenly believed it lacked the discretion to
impose concurrent, rather than consecutive sentences on counts 1 and 2, and therefore the
matter should be remanded for resentencing.
       Preliminarily, we seek to clarify what is not in dispute. The Three Strikes law
mandates consecutive sentences for any current felony convictions “not committed on the
same occasion, and not arising from the same set of operative facts.” (§ 667, subd. (c)(6);
People v. Lawrence (2000) 24 Cal.4th 219, 222–223 (Lawrence).) Conversely,
consecutive sentences are not mandatory, and the court retains discretion to impose
concurrent terms, if the current felony convictions are committed on the same occasion or
arise from the same set of operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591
(Deloza ).) Appellant contends, the People do not dispute, and we conclude that the
count 1 and 2 offenses occurred on the same occasion. (People v. Hendrix (1997) 16
Cal.4th 508, 510, 514 [two robberies committed on same occasion where defendant
pointed gun at four people seated at a shopping mall and demanded money, and two
complied]; Lawrence, supra, at pp. 225–227 [crimes brief in duration and committed
“essentially simultaneously” against the same group of victims are committed on the




                                            5.
same occasion].)6 Therefore, as the parties also agree, imposition of consecutive
sentences on counts 1 and 2 was not mandatory.
       The parties also recognize that when the record affirmatively shows that a
sentencing court mistakenly believed it was required to impose consecutive terms and
had no discretion to impose concurrent terms, remand is necessary so the court may
“impose sentence with full awareness of its discretion.” (People v. Fuhrman (1997) 16
Cal.4th 930, 944; accord, Deloza, supra, 18 Cal.4th at pp. 599–600.) Appellant and the
People part company, however, on the question of whether operation of this principle
requires remand in the instant case.
       We conclude remand is required. As indicated earlier, the court stated at the
January 2013 sentencing that imposition of consecutive sentences was “mandated.”
There is nothing in the record to indicate the court changed its view by the time of the
February 2013 resentencing. The court’s unequivocal expression of its belief that it was
required by law to impose consecutive sentences affirmatively shows the court
misunderstood the scope of its sentencing discretion.
       The People argue to the contrary. First, the People assert: “[I]t is most reasonable
to read the court’s words[, i.e., the court’s statement at the January 2013 sentencing that
consecutive sentences are ‘mandated’] to mean that ‘the terms for Count One and Two
are mandated by this court to be served consecutively,’ not that the terms were mandated
by the Penal Code to be served consecutively.” The People base this contention, in turn,
on the claim that immediately prior to stating consecutive sentences were “mandated,”
the court “specifically discussed appellant’s aggravating and mitigating circumstances”
and “highlight[ed]” rule 4.425—which sets forth “Criteria affecting the decision to
impose consecutive rather than concurrent sentences”—and section 667,

6      We express no opinion on whether the two robberies arose of the “same set of
operative facts” within the meaning of section 667, subd. (c)(6).



                                             6.
subdivision (c)(7).7 The People argue it would not be “logical” for the court to mention
these matters unless it believed it had the discretion to impose either consecutive or
concurrent sentences on counts 1 and 2. The People also point out that the court did not
use the word “mandated” or any of its synonyms at the February 2013 resentencing. We
are not persuaded.
       First, the court used the word “mandated” at other points in the January 2013
hearing in contexts in which it clearly meant to use the word as a synonym for “required
by law.” Where section 667, subdivision (a)(1) prior serious felony enhancement
allegations are found true, “[t]he trial court has no discretion and the sentence is
mandatory” (People v. Purata (1996) 42 Cal.App.4th 489, 498), and here, at sentencing,
the court stated, “Pursuant to … section 667[, subdivision ](a)(1), [appellant] is mandated
to serve an additional and consecutive term of five years for each prior serious felony
conviction.” (Italics added.) Similarly, imposition of prior prison term enhancements
(§ 667.5, subd. (b)) is mandatory unless such enhancements are stricken (People v.
Langston (2004) 33 Cal.4th 1237, 1241–1246), and at the January 2013 sentencing the
court stated: “Pursuant to … Section 667.5[, subdivision ](b), [appellant] is mandated to
serve an additional and consecutive term of one year for each prison prior. I will strike
two of these enhancements ….” (Italics added.) The foregoing demonstrates that the
court used the word “mandated” to mean “required by law.”
       Second, the court’s discussion of circumstances in aggravation listed in rule 4.421
does not suggest that the court was considering those factors in deciding whether to
impose consecutive sentences. Circumstances in aggravation and mitigation are relevant
to the decision as to whether to impose an upper, middle or lower term for an offense.
(Rule 4.420(b) [a sentencing court, in selecting one of the three prison terms authorized
for an offense, “may consider circumstances in aggravation or mitigation”].) As
7      See footnote 4, ante.



                                              7.
indicated above, a separate rule provides guidance for courts in deciding whether to
impose consecutive or concurrent sentences. (Rule 4.425.) Moreover, under the Three
Strikes law, for a person with two or more strikes, the Vehicle Code violation of which
appellant stands convicted in count 3 is punishable by a term of 32 months, four years or
six years. (Pen. Code, §§ 667, subds. (e)(1) & (e)(2)(C), 18, subd. (a); Veh. Code,
§ 2800.2, subd. (a).) Thus, the court’s on-the-record consideration of circumstances in
aggravation and mitigation no doubt related to its decision to impose the upper term on
count 3.
       Third, it appears that the court’s reference to rule 4.425 shortly before the court
stated consecutive sentences were mandated was simply a matter of the court reading
nearly verbatim from the RPO.8
       Finally, the court made no findings on, and did not discuss, at either sentencing
hearings, any of the rule 4.425 criteria for deciding to impose consecutive rather than
concurrent sentences.
       In our view, the court’s statement at the January 2013 sentencing hearing that
consecutive sentences on counts 1 and 2 were mandated, considered in conjunction with
the absence of any other indication that the court believed differently at the time of the
February 2013 hearing, affirmatively show that the court misunderstood the scope of its
sentencing discretion. Accordingly, the sentence must be vacated and the matter
remanded to the trial court to allow the court to properly exercise that discretion.



8      The RPO stated: “RULE 4.425: CRITERIA AFFECTING CONCURRENT
OR CONSECUTIVE SENTENCES [¶]] (b) Other criteria and limitations: Pursuant
to P[enal ] C[ode section] 667[, subdivision ](c)(7), the terms for Counts One and Two
are mandated to be served consecutively.” As indicated earlier, the court stated:
“Rule 4.425, criteria affecting concurrent or consecutive sentences, under (b), pursuant to
Penal Code Section 667[, subdivision ](c)(7), the terms for Count One and Two are
mandated to be served consecutively.”



                                             8.
                                     DISPOSITION
       The sentence is vacated and the matter remanded for resentencing in accordance
with the views expressed in this opinion. In all other respects the judgment is affirmed.




                                            9.
