People v. Thomas CA2/1

Filed 5/24/16 P. v. Thomas CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B259783
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA103170)
v.
DIANJEI QUISHUN THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. George
Genesta, Judge. Reversed with instructions.
______
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
______
Appellant Dianjei Quishun Thomas appeals from the judgment of conviction,
challenging the court’s imposition of consecutive sentences for robbery and attempted
robbery. Appellant contends, the Attorney General concedes, and we agree that the trial
court erroneously believed it lacked the discretion to impose concurrent rather than
consecutive sentences, and that the court’s failure to exercise sentencing discretion
requires remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Police arrested appellant after he committed several separate robberies. An
information charged appellant with robbery in counts 1 and 2 (Pen. Code,1 § 211),
attempted robbery in count 3, (§§ 664 and 211), carrying an unregistered loaded firearm
in count 4 (§ 25850, subd. (a)), and further alleged that appellant personally used a
firearm within the meaning of section 12022.53, subdivision (b) in counts 1 and 2.
The information did not allege that appellant had suffered prior serious or violent felony
convictions or had served prior prison terms. Appellant pleaded no contest and admitted
the special allegations.
The trial court sentenced appellant to state prison for a total of 17 years and 10
months calculated as follows: on count 1, three years, plus 10 years for the firearm
enhancement; on count 2, eight months, plus three years and four months for the firearm
enhancement; on count 3, six months; and on count 4, two years.2 The court ordered that
the sentence on counts 2 and 3 run consecutively to the sentence on count 1 because the
court believed it lacked discretion to impose concurrent sentences.
Appellant timely appealed, challenging his sentences.3
1 All statutory references are to the Penal Code unless otherwise indicated.
2 The court ordered the sentence on count 4 to run concurrent to all other sentences.
3 Appellant does not challenge the propriety of the underlying judgment.
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DISCUSSION
A trial court has the discretion to impose either concurrent or consecutive
sentences for multiple felony convictions unless a statutory provision mandates
consecutive sentences. (See People v. Hendrix (1997) 16 Cal.4th 508, 514; People v.
Casper (2004) 33 Cal.4th 38, 42; People v. Byrd (2011) 194 Cal.App.4th 88, 104.) A
court must state on the record its reasons for imposing either concurrent or consecutive
sentences. (§ 1170.17, subd. (c); Cal. Rules of Court, rule 4.406(b)(5); People v. Powell
(2011) 194 Cal.App.4th 1268, 1297.)
Here, at the sentencing hearing, the trial court stated that section 1170.12,
subdivision (a)(7) compelled it to impose consecutive sentences on counts 2 and 3. That
section mandates consecutive sentences only when a defendant is found to have suffered
one or more prior serious or violent felony convictions. (See § 1170.12, subd. (a)(7).)
The information, however, did not charge appellant with any prior serious or violent
felony convictions and, of course, the court did not find him to have been convicted of
such felonies. Further, no other statute mandates consecutive sentences under the facts of
this case. Accordingly, the parties properly agree that the trial court erred in concluding
that it lacked sentencing discretion and that the law required the terms for counts 2 and 3
to run consecutively to count 1. Remand is, therefore, necessary so the court may
“impose sentence with full awareness of its discretion.” (People v. Fuhrman (1997)
16 Cal.4th 930, 944; see People v. Deloza (1998) 18 Cal.4th 585, 599-600 [remand
warranted where trial court erroneously believed the law required consecutive
sentences].)
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DISPOSITION
The judgment is reversed, and the matter is remanded for resentencing in accord
with the views expressed in this opinion.
NOT TO BE PUBLISHED
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
LUI, J.
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