Rivera

Richard Raul Rivera pays his third visit to this court. The first time, we affirmed his convictions for assault with intent to commit murder with enhancing allegations and first degree burglary (People v. Rivera (1981) 127 Cal.App.3d 136 [ 179 Cal.Rptr. 384 ]). The second time, we agreed with him the court failed to consider the Board of Prison Terms’ determination Rivera’s sentence of ten years and four months (six years for the assault, three years for the great bodily injury enhancement and a sixteen-month consecutive sentence for the burglary) was disparate, i.e., the burglary sentence should have been concurrent, not consecutive. The Supreme Court ordered our opinion on that appeal depublished {People v. Rivera * (Cal.App.)). The depublished opinion continues to be the law of the case. (Cal. Rules of Court, rule 977(b).)

This time around, Rivera is the respondent. The People now appeal his resentence on the burglary conviction to be concurrent and not consecutive with the assault and enhancement for a total of nine years. The People *496 contend the court failed to exercise its independent judgment and simply reduced in robot fashion the sentence to conform with the…