THE PEOPLE v. CHARLES LEROY DARON JR (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Julie Sullwold-Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Charles Leroy Daron, Jr., appeals from the judgment sentencing him to consecutive terms of 25 years to life, plus an additional 5-year term under Penal Code section 667, subdivision (a)(1), for his convictions for first degree burglary and evading a police officer.

We appointed counsel to represent Daron in the matter.   After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   On October 5, 2010, we directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to Daron and notified Daron that within 30 days from the date of the notice he could submit by brief or by letter any grounds of appeal, contentions or argument he wished us to consider.   Daron did not respond.

We briefly describe the facts and procedural history of the case, the crimes of which Daron was convicted and the punishment imposed.  (People v. Kelly (2006) 40 Cal.4th 106, 110.)

An information dated March 9, 2007, charged Daron with one count of first degree burglary (Pen.Code, § 459) and one count of evading a police officer (Veh.Code,

§ 2800.2).  The information specially alleged that Daron qualified for sentencing under the Three Strikes law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and that his sentence was subject to enhancement under Penal Code section 667, subdivision (a)(1).

A jury found Daron guilty of both first degree burglary and evading a police officer.   The trial court found that Daron had suffered 19 prior violent felony convictions (robberies) and one prior serious felony conviction as defined by Penal Code section 667, subdivision (a)(1).   The court also concluded that the two crimes of which Daron had been convicted did not arise out of the same set of operative facts.   It sentenced Daron under the Three Strikes law to consecutive sentences of 25 years to life for the two convictions, plus 5 years under Penal Code section 667, subdivision (a)(1), for a total sentence of 55 years to life.   Daron appealed.

On appeal, we affirmed the convictions for first degree burglary and evading a police officer, rejecting Daron's contentions that the evidence was insufficient to support the first degree burglary conviction and that the trial court erroneously had instructed on flight pursuant to CALCRIM No. 3.72.   We, however, vacated Daron's sentence because the trial court had erred by sentencing Daron to consecutive sentences of 25 years to life for the first degree burglary and evading a police officer convictions under Penal Code section 667, subdivision (c)(6)-the mandatory consecutive-sentence provision.   We held that the evidence was insufficient to support the trial court's implied finding that the offenses were not committed on the same occasion.   Accordingly, the imposition of consecutive sentences was discretionary, not mandatory, contrary to the trial court's decision.  (People v. Hall (1998) 67 Cal.App.4th 128, 138.)   We, therefore, vacated Daron's sentence and remanded the case for the trial court to conduct a new sentencing hearing and exercise its discretion whether to impose consecutive or concurrent sentences.  (People v. Daron (Oct. 5, 2009, B207917) [nonpub. opn.].) ¹

On remand, the trial court reviewed the evidence demonstrating that the crimes of first degree burglary and evading a police officer did not arise from the same set of operative facts and incorporated its previous findings and orders, which in part detailed Daron's criminal history and his conduct leading to the instant convictions.   The court then exercised its discretion to sentence Daron to two consecutive terms of 25 years to life and also imposed a 5-year enhancement pursuant to Penal Code section 667, subdivision (a)(1), again resulting in a total sentence of 55 years to life.   Daron appealed.

We have examined the entire record and are satisfied that Daron's appointed attorney has fully complied with her responsibilities and that no arguable issue exists.  (People v. Wende, supra, 25 Cal.3d at p. 441.)   Although Daron's sentence of 55 years to life remained the same, the trial court had the authority to impose such sentence and, under the facts, did not abuse its discretion.

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. We granted Daron's request for judicial notice of the record in case No. B207917..  FN1. We granted Daron's request for judicial notice of the record in case No. B207917.

MALLANO, P. J. CHANEY, J.