Opinion
S255507
07-17-2019
PEOPLE v. REED (BRUCE EVERETTE)
C085792 Third Appellate District
Petition for review granted; transferred to Court of Appeal, Third Appellate District
The petition for review is granted. The matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its order dismissing the appeal as moot and to consider whether to reinstate the appeal to decide appellant's claim that the matter should be remanded to the trial court to permit an exercise of discretion under Penal Code section 12022.53, subdivision (h). (See City of Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031 [“where a court can afford the party at least some relief, even if not all the relief originally requested, the court should not dismiss a case as moot”]; see also Security Pacific Nat. Bank v. Lyons (1994) 25 Cal.App.4th 706, 710; Hartke v. Abbott (1930) 106 Cal.App. 388, 395.)
If the Court of Appeal reinstates the appeal, the court should also consider whether to decide the parties' contentions that the sentence is unauthorized because: (1) the consecutive term imposed for count one (Pen. Code, § 246.3) should be eight months rather than one year (see id., § 1170.1, subd. (a)); and (2) the trial court did not impose and stay a term for each of the gang enhancements found to be true by the jury (see People v. Gonzalez (2008) 43 Cal.4th 1118, 1127-1130; Cal. Rules of Court, rule 4.447(a). (See People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13 [“it is well established that the appellate court can correct a legal error resulting in an unauthorized sentence . . . at any time”].)
Votes: Cantil-Sakauye, C. J., Chin, Corrigan, Liu, Cuéllar, Kruger, and Groban, JJ.