THE PEOPLE v. ZENAIDA CHRISTINA CORDOVA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ZENAIDA CHRISTINA CORDOVA, Defendant and Appellant.

B217448

Decided: November 23, 2010

Laura S. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Zenaida Christina Cordova appeals from the judgment entered following her convictions by jury on two counts of carjacking (Pen.Code, § 215;  counts 1 & 4) with a finding as to count 1 that appellant personally used a firearm (Pen.Code, § 12022.53, subd. (b)), count 2 - kidnapping to commit carjacking (Pen.Code, § 209.5), and count 3 - kidnapping to commit robbery (Pen.Code, § 209, subd. (b)(1)) with findings as to each offense that appellant committed it for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)).1  The court resentenced appellant to prison for 10 years, plus three consecutive terms of 15 years to life.   We affirm the judgment, except that we vacate it in part and remand the matter with directions.

FACTUAL AND PROCEDURAL SUMMARY

1. The Substantive Offenses.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established 2 that on April 13, 2005, appellant and her accomplices committed against Bryan Johnson the offenses alleged in counts 2 and 3. On April 14, 2005, appellant and accomplices committed the offense alleged in count 1 against Karen Arakelian.

2. The March 16, 2007 Sentencing Hearing.

On March 16, 2007, the trial court sentenced appellant to prison, as to count 1, to 15 years to life for carjacking pursuant to Penal Code section 186.22, subdivision (b)(4)(B), plus five years for carjacking, plus 10 years for the firearm enhancement, with, as to each of counts 2 and 3, a consecutive term of life with the possibility of parole, and with, as to count 4, a consecutive subordinate term of one year eight months for carjacking and a consecutive subordinate term of five years to life for carjacking pursuant to Penal Code section 186.22, subdivision (b)(4)(B).

3. The July 10, 2007 Recall of Appellant's Sentence.

On July 10, 2007, on appellant's motion pursuant to Penal Code section 1170, subdivision (d), the court recalled its sentence.   The court left unchanged appellant's prison sentence as to count 1, but, as to each of counts 2 and 3, the court, without citation to statutory authority, either stayed imposition of, or stayed, life sentences on counts 2 and 3, and, as to count 4, imposed only a concurrent four-year middle term.3

4. Cordova I.

Appellant appealed, alleging various trial and sentencing errors which we addressed in Cordova I (see fn. 1, ante ).   As relevant here, in Cordova I, appellant claimed that carjacking (count 4) was a lesser included offense of kidnapping to commit carjacking (count 2);  therefore, reversal of appellant's conviction on count 4 was appropriate.   Respondent conceded the issue.

Appellant also claimed the trial court appeared to lack statutory authorization to stay the sentences on counts 2 and 3. Respondent conceded this issue also.

5. The March 10, 2009 Resentence.

Following remand, the trial court, on March 10, 2009, called the case for resentencing.   The court stated that it believed the Court of Appeal had ordered it to run counts 2 and 3 consecutive to count 1.

The trial court, as to each of counts 1 through 3, imposed a prison term of 15 years to life pursuant to Penal Code section 186.22, subdivision (b)(4)(B), plus, as to count 1, 10 years for the Penal Code section 12022.53, subdivision (b) firearm enhancement.   The court later stated, “[c]ount 4 is dismissed pursuant to 654 [sic ], based on it being the lesser of count 2, the 209(B) [sic ].”

6. The July 6, 2009 Denial of Appellant's Motion to Recall Her Sentence.

On July 6, 2009, the court called the case, stating that appellant had filed, pursuant to Penal Code section 1170, subdivision (d), a motion for reconsideration of her sentence.   During the hearing on the motion, appellant indicated that, after research and consultation with counsel for the California Appellate Project, appellant believed the court had discretion to impose concurrent instead of consecutive terms on counts 2 and 3. Appellant asked the court order that appellant serve the terms on counts 2 and 3 concurrently with her term on count 1. The court denied appellant's Penal Code section 1170, subdivision (d) motion.

CONTENTIONS

Appellant claims (1) the trial court erroneously believed it lacked discretion to impose concurrent sentences on counts 2 and 3, and (2) the abstract of judgment must be amended to reflect the trial court dismissed count 4 because it was a lesser included offense of count 2, and to reflect the enhancement pertaining to count 1 was a firearm enhancement.   Respondent claims the abstract of judgment must be amended to reflect that the prison sentence of 15 years to life, which the court imposed as to each of counts 1 through 3, was imposed pursuant to Penal Code section 186.22, subdivision (b).

DISCUSSION

1. The Trial Court Erroneously Believed It Lacked Discretion to Impose Concurrent Sentences.

Appellant claims the trial court erroneously believed it lacked discretion to impose concurrent sentences on counts 1 through 3. We agree.  (Cf. People v. Bradford (1976) 17 Cal.3d 8, 20;  People v. Lepe (1987) 195 Cal.App.3d 1347, 1351;  People v. Arviso (1988) 201 Cal.App.3d 1055, 1058-1059;  Pen.Code, § 669.)   As the court said in People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262, “[a]bsent an express statutory provision to the contrary, [Penal Code] section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions.”

Nothing in Cordova I indicated otherwise.   In Cordova I, in relevant part, we essentially did no more than to accept respondent's concession that the trial court had imposed an unlawful sentence by staying, without statutory authority, imposition of sentences on counts 2 and 3, and we vacated appellant's sentence and remanded for resentencing consistent with that opinion.   Although we alluded to the issue of concurrent sentences, we had no occasion to reach the issue of whether a sentence on any count should have been imposed concurrently or consecutively, and Cordova I contains no language directing the trial court to impose consecutive (or concurrent) sentences on any count.   We therefore will vacate appellant's sentence and remand the matter for resentencing.   We express no opinion as to what, following remand, appellant's sentence, or any component thereof, should be or, in particular, as to whether appellant's sentence on any count should be imposed consecutively as opposed to concurrently.

2. The Abstract of Judgment Must Be Amended To Reflect That Count 4 Was Dismissed Because It Was a Lesser Included Offense of Count 2, and That the 10-year Prison Term Imposed As to Count 1 Was Imposed Pursuant to Penal Code Section 12022.53, Subdivision (b).

a. Count 4.

The abstract of judgment for the March 10, 2009 sentencing hearing reflects, “[c]ourt orders count 4 dismissed pursuant to remittitur and court of appeals ['] direction pursuant to Penal Code section 654.”  (Some capitalization omitted.)   Appellant claims the abstract must be amended to reflect count 4 was dismissed because it was a lesser included offense of count 2. We agree.

In Cordova I, appellant claimed the jury improperly convicted her on counts 2 and 4 because count 4 was a lesser included offense of count 2. We stated, “[r]espondent concedes carjacking is a lesser included offense of kidnapping to commit carjacking, and, therefore, appellant's conviction on count 4 must be reversed.”  (Cordova I, supra, B198305, at p. 17, italics added.)   We accepted that concession (ibid.), reversed the conviction on count 4, and remanded the matter with directions to the trial court to dismiss count 4, but we made no reference to Penal Code section 654 in our discussion of appellant's claim or in the disposition.   Respondent concedes the abstract of judgment must be corrected.

In the interests of judicial economy, we will vacate the trial court's order dismissing count 4 and will remand the matter with directions that the trial court enter an order dismissing count 4 and reflecting that that count is dismissed because it alleged a lesser included offense of count 2.

b. The 10-Year Enhancement as to Count 1.

The abstract of judgment reflects that, as to count 1, the trial court imposed a Penal Code section 186.22, subdivision (b)(4) enhancement of 10 years in prison.   Appellant claims the abstract must be amended to reflect that said 10-year term was a Penal Code section 12022.53, subdivision (b) enhancement.   Respondent concedes the issue.   We accept the concession, since the abstract of judgment must reflect the trial court's oral judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185-188), and we will direct the trial court to amend the abstract of judgment accordingly.

3. The Abstract of Judgment Must Be Amended To Reflect That Each of Appellant's Prison Sentences of 15 Years to Life Was Imposed Pursuant to Penal Code Section 186.22, Subdivision (b)(4)(B).

Respondent claims that item 8 of the abstract of judgment must be completed to reflect that the court imposed appellant's prison sentence of 15 years to life as to each of counts 1 through 3 pursuant to Penal Code section 186.22, subdivision (b).  We agree, and note the applicable provision is subdivision (b)(4)(B).  We will direct the trial court to amend the abstract of judgment accordingly.

DISPOSITION

The judgment is affirmed, except that the trial court's order dismissing count 4 (which alleges carjacking), is vacated and the matter is remanded with directions to the trial court that it enter an order reflecting count 4 is dismissed because it alleges a lesser included offense of count 2 (which alleges kidnapping to commit carjacking), appellant's sentence is vacated, and the trial court shall resentence appellant consistent with this opinion.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment consistent with this opinion and reflecting that:  (1) the trial court dismissed count 4 because it alleged a lesser included offense of count 2, (2) the trial court imposed the 10-year prison term enhancement on count 1 pursuant to Penal Code section 12022.53, subdivision (b), and (3) the trial court imposed a prison sentence of 15 years to life as to each of counts 1 through 3 pursuant to Penal Code section 186.22, subdivision (b)(4)(B).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. This is appellant's second appeal.   In her first, People v. Zenaida Christina Cordova (July 29, 2008, B198305) [nonpub. opn.]  (Cordova I )), we affirmed the judgment, except that we reversed her conviction for carjacking (count 4), vacated her sentence, and remanded to the trial court with directions to dismiss count 4 and resentence her on the remaining counts consistent with that opinion..  FN1. This is appellant's second appeal.   In her first, People v. Zenaida Christina Cordova (July 29, 2008, B198305) [nonpub. opn.]  (Cordova I )), we affirmed the judgment, except that we reversed her conviction for carjacking (count 4), vacated her sentence, and remanded to the trial court with directions to dismiss count 4 and resentence her on the remaining counts consistent with that opinion.

FN2. A more extensive recitation of the facts of appellant's offenses may be found in Cordova I..  FN2. A more extensive recitation of the facts of appellant's offenses may be found in Cordova I.

FN3. We express no opinion as to the validity of appellant's March 16, 2007, or July 10, 2007 sentences..  FN3. We express no opinion as to the validity of appellant's March 16, 2007, or July 10, 2007 sentences.

CROSKEY, Acting P. J. ALDRICH, J.