People v. Safarov CA1/3
A157776
| Cal. Ct. App. | Jul 2, 2021Background
- Defendant Rushan Safarov was convicted by jury of first‑degree burglary (person present) and a violent‑felony allegation was found true. DNA linked him to the scene.
- At sentencing the prosecutor sought a 16‑month consecutive term to sentences Safarov was already serving in Sacramento and Placer Counties (People stated those prior terms totaled 72 months).
- Defense asked for concurrency; the court imposed one‑third the middle term for burglary and ordered it to run consecutively “to the sentence presently being served from other counties,” but did not pronounce a single aggregate term combining prior and new determinate terms.
- Defendant appealed, arguing the trial court’s failure to pronounce an aggregate sentence (under Penal Code § 1170.1 and Cal. Rules of Court, rule 4.452(a)) triggered Penal Code § 669(b) and rendered the new sentence concurrent by operation of law.
- The Court of Appeal held the court clearly intended a consecutive sentence so § 669(b) did not convert the term to concurrent; however, because the court failed to pronounce the statutorily required aggregate term, the matter is remanded for the trial court to pronounce the aggregate determinate term consistent with § 1170.1 and rule 4.452(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to pronounce an aggregate term requires the new sentence to run concurrently under Penal Code § 669(b) | People: § 669 only requires the court to state concurrent or consecutive; here the court expressly ordered consecutive so § 669(b) does not apply | Safarov: because court did not pronounce the new aggregate term within the statutory framework, § 669(b) mandates concurrent running by operation of law | Court: § 669(b) not triggered because court expressly intended consecutive; no automatic conversion to concurrent |
| Proper remedy for failure to pronounce aggregate term under § 1170.1 and rule 4.452(a) | People: remand for the trial court to pronounce the required aggregate term taking prior sentences into account | Safarov: sought modification to concurrency instead of remand | Court: remand for pronouncement of aggregate term; otherwise affirm judgment |
Key Cases Cited
- In re White, 1 Cal.3d 207 (Cal. 1969) (explains the 60‑day rule exists to prevent inadvertent imposition of consecutive sentences)
- In re Reeves, 35 Cal.4th 765 (Cal. 2005) (a court imposing consecutive determinate terms must create a new aggregate term into which consecutive terms merge)
- People v. Edwards, 117 Cal.App.3d 436 (Cal. Ct. App. 1981) (§ 669 inapplicable where record clearly shows trial court intended consecutive sentences)
- People v. Benton, 100 Cal.App.3d 92 (Cal. Ct. App. 1979) (remand appropriate to correct failure to pronounce aggregate or to correct an unauthorized sentence)
- People v. Cheffen, 2 Cal.App.3d 638 (Cal. Ct. App. 1969) (failure to pronounce judgment can be rectified on remand where no prejudice or miscarriage of justice results)
- People v. Mitchell, 26 Cal.4th 181 (Cal. 2001) (appellate court may correct clerical errors but substantive sentencing determinations require remand)