Modification: People v. Koback

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN KEITH KOBACK

Defendant and Appellant.

No. E066674

(Super.Ct.No. RIF1506598)

California Courts of Appeal

Fourth Appellate District

Division Two

Filed Aug. 3, 2018

CERTIFIED FOR PARTIAL PUBLICATION^*

^* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of sections III.B and III.C.

ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT

The court has reviewed the petition for rehearing filed July 25, 2018. The petition is denied. The opinion filed in this matter on July 17, 2018, is modified as follows:

On page 2, in the editorial information, insert Deputy Attorney General Craig Russell. The paragraph should read as follows:

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig Russell, Deputy Attorneys General, for Plaintiff and Respondent.

On page 3, the second sentence of the second full paragraph should read:

A trial court has discretion under the three strikes law to impose concurrent sentences if the current offenses occurred on the same occasion or arose from the same operative facts.

On page 15, change the first full paragraph to read:

"If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count . . . ." (Pen. Code, §§ 667, subd. (c)(6), 1170.12, subd. (a)(6), italics added.) Under the plain language of the statutes, the trial court has no discretion to sentence a defendant to concurrent sentences under the three strikes law when the current felony convictions were not committed on the same occasion or did not arise from the same operative facts. In that situation, consecutive sentences are mandatory. (People v. Hojnowski (2014) 228 Cal.App.4th 794, 800.) But the trial court has discretion to impose concurrent sentences if it concludes the current convictions were committed on the same occasion or did arise from the same operative facts (People v. Casper (2004) 33 Cal.4th 38, 42), unless a consecutive sentence is otherwise mandated by another statute (People v. Torres (2018) 23 Cal.App.5th 185, 198).

On page 16, change the first full paragraph to read:

The People also argue that, if we conclude the trial court misunderstood its discretion, we should not remand for resentencing because there is no possibility the trial court will conclude the offenses were committed on the same occasion or did arise out of the same operative facts. According to the People, the record supports the trial court's implied findings that the current offenses were not committed on the same occasion or did not arise from the same operative facts.

These modifications do not change the judgment.

McKINSTER

Acting P. J.

I concur:

MILLER

J.