People v. Ruiz
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In the State of California, the Court of Appeal Second Appellate District Division Six heard the third appeal in the sentencing of Frank Ruiz. Originally, Ruiz was sentenced to 18 years in prison, but this was increased to 28 years after a 10-year consecutive sentence for a firearm-use enhancement was reinstated. The decision to reinstate the sentence was made because the trial court's stay of execution of the sentence was unauthorized. However, the court was directed to reconsider whether to strike the firearm-use enhancement and a five-year enhancement for a prior serious felony conviction. The trial court refused to strike either enhancement, resentencing Ruiz to an aggregate term of 28 years.
This sentencing was appealed twice. The second appeal was dismissed, but the sentence was vacated and the case was remanded for resentencing in light of Senate Bill No. 567, which amended section 1170. On remand, Ruiz was sentenced to an aggregate term of 23 years. Ruiz appealed again, contending that the true finding on the gang enhancement allegation must be vacated and that in selecting the upper term for both the conviction of assault with a firearm and the firearm-use enhancement, the trial court relied on aggravating factors that are inapplicable pursuant to S.B. 567. He also contended that he is entitled to additional days of custody credit, that the aggregate sentence imposed on remand could not have exceeded the 18-year aggregate sentence originally imposed, and that the matter must again be remanded for resentencing because of a recent amendment of section 1385.
The court agreed with Ruiz's contention regarding the gang enhancement allegation and vacated the true finding on the allegation, remanding the matter to afford the People an opportunity to retry the allegation. The court also agreed that Ruiz was entitled to additional days of custody credit and modified the judgement to award him more credit. However, the court disagreed with Ruiz's other contentions and affirmed the judgement in all other respects.
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