Filed 12/31/19 P. v. Gonzalezramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR AUGUSTO GONZALEZRAMIREZ,

Defendant and Appellant.

E071196

(Super.Ct.No. FVI18000968)

OPINION

APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed with directions.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, Cesar Augusto Gonzalezramirez, was tried by a jury and convicted of driving under the influence of alcohol causing great bodily injury (Veh. Code, § 23153, subd. (a); Pen. Code, § 12022.7, subd. (a)), and driving with a blood-alcohol content of 0.08 percent or higher causing great bodily injury (Veh. Code, § 23153, subd. (b)); Pen. Code, § 12022.7, subd. (a)). Defendant was sentenced to a total of five years in state prison on the first count, and one-third the midterm, stayed, on the second. Defendant appealed.

On appeal, defendant argues that the court erred by imposing a sentence of one-third the midterm for the second count. The People agree that this was in error and that defendant’s sentence should be modified accordingly. We agree with the parties and order the sentence and abstract of judgment be modified as explained below.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2018, William A. was driving in the leftmost lane of Interstate 15 just outside of Barstow, California with his wife, Robin A., in the passenger seat. A black sport utility vehicle (SUV) approached their car from behind going very fast. It got very close to their car, at some point coming within two feet of William A. and Robin A.’s rear bumper. Eventually the SUV attempted to pass William A. and Robin A. on the left shoulder, driving into the gravel lining on the left side of Interstate 15 before veering back into the left lane. The SUV collided with William A. and Robin A.’s car, causing it to swerve to the right and off the road. William A. and Robin A.’s car traveled at high speed through rough desert terrain before finally coming to a stop on an embankment 300 to 500 feet away from the road. William A. did not suffer any serious injuries, but Robin A. suffered a broken C2 vertebrae, broken sternum, and crushed L1 vertebrae, in addition to a torn rotator cuff and bruising on her lower body.

Meanwhile, the California Highway Patrol (CHP) received multiple calls regarding a black SUV driving erratically that had collided with a car. About 15 minutes after the incident, CHP Officer Brian Baker stopped a black SUV being driven by defendant. Officer Baker observed damage and paint transfer on the right side of defendant’s vehicle. Defendant smelled of alcohol and struggled to maintain his balance when he exited the vehicle. He also had red, watery eyes; slightly slurred speech; four empty cans of beer; and one unopened can of beer in the car. Officer Baker performed a horizontal gaze nystagmus test on defendant, which indicated he was impaired due to alcohol. Defendant was arrested and taken to a hospital, where his blood was drawn. This sample indicated that defendant’s blood-alcohol content was 0.251 percent.

The District Attorney of San Bernardino County charged defendant by information with one count of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a blood-alcohol content of 0.08 percent or higher causing injury (Veh. Code, § 23153, subd. (b); count 2). Both of these counts also alleged that defendant caused great bodily injury. (Pen. Code, § 12022.7, subd. (a).)

In July 2018, a jury found defendant guilty on both counts. The jury also found both great bodily injury enhancement allegations true.

The court sentenced defendant to the midterm of two years for count 1, plus three years for the great bodily injury enhancement. The court sentenced defendant to one-third the midterm of two years, or eight months, for count 2, plus three years for the great bodily injury enhancement. The court then stayed the execution of sentence for count 2 pursuant to section 654. The court also ordered that the eight-month sentence on count 2 was concurrent with count 1, while the great bodily injury enhancement for count 2 would be consecutive to the sentence for count 2.

Defendant timely appealed.

III. DISCUSSION

Defendant argues that the trial court erred by imposing a sentence of one-third the midterm for count 2. The People agree with defendant. We agree with the parties and order the sentence modified.

Section 1170.1, subdivision (a), requires that “when any person is convicted of two or more felonies . . . the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . .” Once a court has determined which term is the principal “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction . . . .” (§ 1170.1, subd. (a).)

Section 1170.1, subdivision (a), is expressly limited by section 654, which “prohibits multiple sentences where a single act violates more than one statute.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) Where section 654 applies, a trial court must impose and then stay the execution of the duplicative sentence arising from the same act. (People v. Duff (2010) 50 Cal.4th 787, 796.)

Thus, “[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654.” (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.) Indeed a sentence “cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.” (Ibid.)

Accordingly, the trial court’s decision to sentence defendant to one-third the midterm pursuant to section 1170.1, subdivision (a), and to stay the execution of that sentence under section 654, was in error. Instead, the trial court should have imposed the full two-year midterm sentence on count 2, then stayed execution of that sentence pursuant to section 654. (People v. Alford (2010) 180 Cal.App.4th 1463, 1469-1472.)

A reviewing court has the inherent authority to correct an unauthorized sentence. (People v. Relkin (2016) 6 Cal.App.5th 1188 [exercising inherent authority to impose full midterm sentence rather than one-third midterm and stay execution pursuant to section 654]; see People v. Smith (2001) 24 Cal.4th 849, 852.) We exercise that authority to correct the unauthorized sentence.

IV. DISPOSITION

We order the abstract of judgment corrected to reflect a sentence of two years for the principal offense under count 2, plus three years for the bodily injury enhancement pursuant to section 12022.7, subdivision (a), for a total sentence of five years on count 2. The sentence on count 2 is ordered stayed pursuant to section 654. The trial court is directed to forward to the Department of Corrections and Rehabilitation a new abstract of judgment. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

SLOUGH

Acting P. J.

MENETREZ

J.