Opinion
D039073, D039527
Filed June 17, 2002 Certified for Publication
APPEAL from a judgment of the Superior Court of San Diego County, No. SF87558, and petition for writ of habeas corpus, Linda B. Quinn, Judge. Affirmed in part; reversed and remanded in part. Petition dismissed as moot.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
In 1995 in superior court case No. SF87558, a jury convicted Louie F. Mora of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) while personally using a firearm (§ 12022.5) and inflicting great bodily injury (§ 12022.7), being a felon in possession of a firearm (§ 12021, subd. (a)), making a terrorist threat (§ 422), false imprisonment (§§ 236/ 237), assault with a deadly weapon (§ 245, subd. (a)(1)), inflicting corporal injury on a spouse or cohabitant (§ 273.5), and dissuading a witness by force (§ 136.1, subd. (c)(1)). In superior court case No. SF90038 Mora entered a negotiated guilty plea to possessing marijuana for sale (Health Saf. Code, § 11359). The court sentenced him to 14 years four months in prison: the four-year upper term for assault with a firearm enhanced five years for personal firearm use, with consecutive eight-month terms for being a felon in possession of a firearm and making a terrorist threat (one-third the middle term), one year for assault with a deadly weapon (one-third the middle term) enhanced one year four months for personally using a firearm (one-third the middle term), one year for dissuading a witness (one-third the middle term), and eight months for possessing marijuana for sale in case No. SF90038 (one-third the middle term). In June 2001, the Department of Corrections advised the trial court that section 1170.15 provides for a full consecutive three-year term for dissuading a witness. On July 3, 2001, the trial court amended the abstract of judgment, ex parte, to provide for a full three-year term for dissuading a witness.
All statutory references are to the Penal Code unless otherwise indicated.
In both the appeal and habeas corpus petition Mora contends amending the abstract of judgment in his absence was error and that increasing his sentence places him in double jeopardy. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305.) The People agree that the trial court erred in resentencing him in his absence. ( People v. Anbee (1983) 143 Cal.App.3d 351, 356.) We remand for resentencing and choose not to consider the double jeopardy issue absent a full record of the proceedings on remand.
Mora's February 2002 motion to vacate the judgment, treated as a petition for writ of habeas corpus, raises the same issues as the appeal. In light of our decision to remand for resentencing, the petition is dismissed as moot.
DISPOSITION
The convictions are affirmed. The sentence is reversed and matter is remanded for resentencing in Mora's presence.
We Concur:
KREMER, P. J.
O'ROURKE, J.