People v. Perez CA2/2 ( 2021 )

Filed 1/28/21 P. v. Perez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B305650
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA078030)
v.
CRISTINO PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael A. Cowell, Judge. Affirmed as modified.
Richard B. Lennon and Cheryl Lutz, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Heather B. Arambarri, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Cristino Perez (defendant) appeals the trial court’s denial
of his postconviction motion for relief, arguing for the first time
on appeal that his sentence is unauthorized. He is right, so we
direct the trial court to modify the abstract of judgment but
otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Underlying Crimes1
On two separate occasions in 2003, defendant robbed
workers at two different textile factories at gunpoint. On both
occasions, he took cell phones and other belongings from the
textile workers; during the second occasion, he also absconded
with $120,000 in cloth.
II. Jury Verdicts
A jury convicted defendant of three counts of robbery (Pen.
Code, § 211),2 five counts of false imprisonment (§ 236), and one
count of attempted robbery (§§ 211, 664). As to all of the counts,
the jury found true the allegations that defendant had
“personally used” a firearm, but the statutory bases for those
findings were not the same: As to the robbery and attempted
robbery counts, the jury found “personal use” under section
12022.53, subdivision (b); as to the false imprisonment counts,
the jury found “personal use” under section 12022.5, subdivision
(a).
1 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Perez (Sept.
7, 2005, B177028) [nonpub. opn.].)
2 All further statutory references are to the Penal Code
unless otherwise indicated.
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III. Sentencing
The trial court sentenced defendant to prison for 43 years
and eight months. The court imposed a principal sentence of 15
years for one of the robberies, comprised of a base upper-end term
of five years plus 10 years for the firearm enhancement under
section 12022.53, subdivision (b). Next, the court imposed two
consecutive sentences of four years and four months for the two
remaining robbery convictions, comprised of a base term of one
year (calculated as one-third of the midterm of three years) plus
three years and four months for the firearm enhancement
(calculated as one-third of the 10-year firearm enhancement
under section 12022.53, subdivision (b)). The court then imposed
five consecutive sentences of four years for the attempted robbery
count and four false imprisonment counts, comprised of a base
term of eight months (calculated as one-third of the midterm of
two years) plus three years and four months for the firearm
enhancement (calculated as one-third of the 10-year firearm
enhancement under section 12022.53, subdivision (b)). The court
imposed, but stayed under section 654, a four-year sentence for
the last remaining false imprisonment count.
IV. Direct Appeal
We affirmed defendant’s conviction and sentence in
September 2005. (People v. Perez, supra, B177028.)
V. Motion for Postconviction Relief
In February 2020, defendant filed a motion to modify his
sentence, arguing that the trial court now had discretion to
dismiss his firearm enhancements under Senate Bill 620 and
that the trial court erred in imposing consecutive sentences
under section 654. The trial court denied the motion as “lack[ing]
merit.”
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VI. Instant Appeal
Defendant filed this timely appeal of the denial of his
motion for postconviction relief.
DISCUSSION
On appeal, defendant raises a wholly new argument—
namely, that his sentence is unauthorized because the trial court
erred in imposing firearm enhancements on the false
imprisonment counts pursuant to section 12022.53, subdivision
(b). As the People concede, this was error. It was inconsistent
with the jury’s verdict, which made its “personal use” of a firearm
finding based on section 12022.5, subdivision (a). It was also
inconsistent with the law because the firearm enhancements in
section 12022.53 only apply to certain felonies, and false
imprisonment is not among them. (§ 12022.53, subd. (a).) This
error renders defendant’s sentence unauthorized, which means it
cannot be waived and thus may be challenged for the first time
on appeal of a postconviction motion for relief. (People v. Scott
(1994) 9 Cal. 4th 331, 354.)
However, because the jury’s findings rested on the correct
statutory basis, the way to correct the unauthorized sentence is
to modify the abstract of judgment to reflect that the firearm
enhancements for the false imprisonment counts rest on section
12022.5, subdivision (a) rather than section 12022.53, subdivision
(b). This does not result in any change in sentence because the
version of section 12022.5, subdivision (a) in effect in 2004, like
the version in effect now, gave trial courts the discretion to
impose a sentence of three, four or ten years. (Former § 12022.5,
subd. (a), added by Stats. 2003, ch. 468, § 21, eff. Jan. 1, 2004.)
Because the trial court in this case always selected the upper-
term sentence and ran every count consecutive to the others
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(except where section 654 applied), the court evinced an
unmistakable intent to maximize defendant’s sentence. Thus,
there is no reasonable probability that the trial court would have
selected anything other than the upper-term 10-year
enhancement under section 12022.5, subdivision (a). As a result,
then, the court would have legally imposed the same sentence
enhancement that it illegally imposed under section 12022.53,
subdivision (b)—one-third of that 10-year enhancement for each
false imprisonment count. (See People v. Hill (2004) 119
Cal. App. 4th 85, 91-92; People v. Sandoval (1994) 30 Cal. App. 4th
1288, 1302; § 1170.1, subd. (a) [requiring imposition of “one-third
of the term imposed for any specific enhancements applicable to
. . . subordinate offenses”].)
DISPOSITION
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The trial court is ordered to prepare and forward to the
California Department of Corrections and Rehabilitation a
modified abstract of judgment to reflect that the firearm
enhancements imposed for the false imprisonment counts are
imposed pursuant to section 12022.5, subdivision (a). In all other
respects, the judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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