People v. Rocha CA4/2

I. INTRODUCTION

Defendant and appellant Daniel Nino Rocha appeals the sentence imposed

following remand by this court with the direction that the trial court stay the 16-month

sentence on count 3 under Penal Code1 section 654. Upon remand, the trial court vacated

the sentence, and imposed then stayed an upper term sentence of three years on count 3.

Defendant argues the trial court lacked jurisdiction to increase the sentence on count

from this court’s dispositional order. The People agree, as do we. The trial court had no

power to deviate from the dispositional order in our opinion from defendant’s prior

appeal on remand. The matter is therefore remanded to the trial court with directions to

reduce the term on count 3 to a stayed 16-month term. In all other respects, the judgment

is affirmed.

II. PROCEDURAL BACKGROUND

On July 12, 2013, a jury found defendant guilty of assault with a firearm (§ 245,

subd. (a)(2); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2);

and street terrorism (§ 186.22, subd. (a); count 3). As to count 1, the jury found true that

defendant had personally used a firearm (§ 12022.5, subd. (a)) and had…