Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. (Super. Ct. No. 04WF0238)
The opinion of the court was delivered by: Sills, P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part and reversed in part.
One of the issues in this appeal from the resentencing of Federico Rosas for two attempted murders of a rival gang member raises a question of first impression in criminal sentencing procedure: Does a trial court, upon appellate remand for resentencing, have the legal authority to make a new restitution fine order, even if the original restitution order was never addressed in the appeal that led to the remand in the first place? Or, alternatively, is the original restitution order "final"? Here, because the remand was for resentencing and restitution fines are statutorily interrelated with a defendant's sentence, we conclude the trial court was indeed within its authority to make a new, lower, restitution order on resentencing.*fn1
This is the second appeal in this case. The first one resulted in a remand to the trial court for resentencing because the Attorney General's office itself identified no less than 11 separate sentencing "defects" the first time around. (See People v. Rosas (June 24, 2009, G040153) [nonpub. opn.] (slip opn. at p. 9) [2009 WL 1805564 at pp. 1-2] (Rosas).
It is not hard to see why sentencing was a relatively complex matter: While the essential facts are simple, those facts implicate a number of crimes.
Those facts are these: In the fall of 2003, Rosas was a member of the Southside Huntington Beach gang and had already been convicted of a felony. One day, while Rosas was driving around in a white Lincoln, he noticed a member of a rival street gang, the Lopers, get in a car and hurriedly drive away from him. When the rival gang member stopped at an intersection, Rosas' car stopped about 60 feet behind. Then Rosas fired a gunshot at the rival gang member's car. The light changed, and after the rival's car pulled about 30 feet ahead, Rosas fired another shot at the rival's car. (Rosas, supra, slip opn. at pp. 3-4) [2009 WL 1805564 at p. 2].)
From this scenario, Rosas was convicted of a total of six counts: two counts of attempted murder, two counts of shooting at an occupied motor vehicle, one count of being a convicted felon in possession of a firearm, and one count of street terrorism. In the first appeal, the main issue was whether Penal Code section 654*fn2 (proscribing dual or multiple punishments for the same act) prohibited the imposition of separate sentences for both counts of attempted murder. The answer was no: Each shot was a separate aim and trigger pull, and in fact the time between the shots only increased the culpability of the second gunshot. (Rosas, supra, slip opn. at p. 8 [2009 WL 1805564 at p. 4].) That point is now law of the case and accepted (at least for purposes of this second appeal) by Rosas.
However, as mentioned, resentencing was in any event required. In this appeal, Rosas raises three challenges to the new sentence. The new sentence consists of:
-- consecutive life terms for the two attempted murders (30 years required before Rosas is eligible for parole), plus an extra 20 years for using a gun;
-- ten years for the two shooting-at-an-occupied-vehicle counts (plus an extra three years for doing so in the service of a gang), but these sentences are stayed under section 654, and this aspect of the sentence is not otherwise relevant to this appeal;
-- four years for street terrorism, but this sentence is stayed under section 654, and this aspect of the sentence is also not otherwise relevant to this appeal;
-- four years for being a felon in possession of a firearm, to be served consecutive to the other counts;
-- an extra five years because Rosas had committed a previous felony.
-- a restitution fine of $5,000 and a $5,000 parole revocation fine, though the abstract of judgment continues to reflect a restitution fine of $10,000 and a parole revocation fine of $10,000 from the first sentencing.
The trial court also struck the gang enhancement on the felon-in-possession-of-a-firearm count (a point the Attorney General's office contends was error, but does not press in this appeal on the ground there was no objection by the prosecutor).
Rosas challenges the new sentence with these three arguments:
-- First, he argues that the additional (i.e., consecutive) four years for being a felon in possession of a firearm should have been stayed under section 654.
-- Second, he claims the abstract of judgment should be corrected to reflect the trial judge's oral reductions in the restitution and parole revocation fines.
-- Third, he claims that he should be given presentence credits to reflect the fact that, by the time of the second sentencing, he ...