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Filed 7/2/21 P. v. Safarov CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

RUSHAN SAFAROV,

Defendant and Appellant.

 A157776

 (San Mateo County

 Super. Ct. No. 18SF007770A)

This is an appeal from judgment after a jury convicted defendant 

Rushan Safarov of felony burglary. Defendant, who when sentenced was 

serving preexisting sentences for convictions in Sacramento and Placer 

Counties, contends the trial court imposed an unauthorized sentence in 

violation of Penal Code sections 669 and 1170, subdivision (a)1 because it 

failed to pronounce on the record a new, aggregate sentence that included his 

unfinished, previous sentences. Defendant contends the court’s failure 

renders his sentence in this case concurrent (rather than consecutive) by 

operation of law. For reasons that follow, we remand this matter to the trial 

court for pronouncement of an aggregate sentence in accordance with the 

applicable law, and in all other regards affirm the judgment.

1 Unless otherwise stated, all statutory citations herein are to the Penal 

Code.
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FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2018, an information was filed charging defendant 

with one count of first degree burglary with a person present (§ 460, subd. 

(a)). It was further alleged that the charged offense was a violent felony 

within the meaning of section 667.5, subdivision (c) in that another person 

other than an accomplice was present in the residence during the burglary. 

A trial began on May 13, 2019, at which the following evidence was received.

On March 19, 2017, around 7:00 a.m., Jacqueline W. left her home in 

an unincorporated area of San Mateo County. When she returned before 

10:00 a.m. and drove into her garage, she noticed the side door of her garage 

was forced open and broken off its hinge. Jacqueline left her car and 

attempted to enter her house through the interior door connecting the garage 

to her kitchen, but she found the door was locked. Although Jacqueline knew

she had not locked that door, she used her key to unlock it and entered the 

kitchen.

At this point, Jacqueline heard “thudding and crashing” followed by the 

sound of someone running through the back of the house in the area of the 

master bedroom. Terrified, Jacqueline ran out the front door to the street

and heard what sounded like someone climbing over the fence that separated 

her yard from her neighbor’s yard. As she tried to call the police, Jacqueline 

saw a white male climb over the fence to her neighbor’s yard before

proceeding to a small, white car parked on the street. This male, later 

identified as defendant, was wearing a black ski hat and carrying a black 

backpack that appeared full.

After defendant got into the car and left the area, Jacqueline returned

to her house and found it ransacked, with $7,000 worth of property missing. 

In addition, the master bedroom’s screen door was smashed and off of its 
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hinge. There was a crowbar not belonging to Jacqueline in the backyard and 

a can of root beer on the kitchen table. The police crime lab later analyzed 

the soda can and found DNA belonging to defendant.

On May 30, 2019, the jury reached a guilty verdict as to the first degree 

burglary count, a serious felony within the meaning of section 1192.7, 

subdivision (c), and found true the violent felony enhancement allegation. 

After the verdict was read, defendant waived a probation report.

At the June 5, 2019 sentencing hearing, the prosecution moved for “a 

sentence of 16 months consecutive to the sentence currently being served by 

the defendant.” The People represented in their sentencing memorandum 

that “defendant is currently serving a 72 month sentence from Sacramento 

and Placer counties. The People are aware that a consecutive sentence will 

convert the defendant’s current sentence from a sentence eligible for 50% 

credit to a sentence eligible for 15% credit. [Citations.] The People feel that 

this increase in the defendant’s existing sentence is commensurate with the 

additional criminal activity the defendant has engaged in. In a short time, 

the defendant broke into the homes of two separate families.” The 

prosecution’s memorandum provided a list of defendant’s prior convictions, 

which included a 2018 conviction that involved similar charges and similar 

facts to this case.2

2 The sentencing memorandum states: “As documented in Sacramento 

Police report number 17-55237, a family returned home from church to find 

their house ransacked. The family realized that property was missing from 

the home. A neighbor observed a white Ford Fusion park in front of the 

victim [sic] house, and two men get out. One of the men was wearing all 

black, including a black hat. The neighbor saw one of the men leave a coffee 

cup in the street outside of the house. The cup was collected by officers from 

the Sacramento Police Department. Subsequent analysis of the cup revealed 

the DNA on it belonged to the defendant.”
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In response, defense counsel referred to the existing prison sentence 

and urged the trial court to impose a concurrent term. The trial court 

disagreed with defense counsel and imposed a sentence of one-third the 

middle term for burglary, to be served consecutively “to the sentence 

presently being served from other counties.” Defendant timely appealed.

DISCUSSION

Defendant seeks modification of his sentence from consecutive to 

concurrent on the grounds that the trial court failed to discharge its statutory 

duty to pronounce on the record the aggregate prison term, specifying how 

the term of imprisonment in this case would run with reference to his prior,

incompleted term(s). The following rules apply.

Section 669, subdivision (a) provides in relevant part: “When a person 

is convicted of two or more crimes, whether in the same proceeding or court 

or in different proceedings or courts, and whether by judgment rendered by 

the same judge or by different judges, the second or other subsequent 

judgment upon which sentence is ordered to be executed shall direct whether 

the terms of imprisonment or any of them to which he or she is sentenced 

shall run concurrently or consecutively.”

Section 669, subdivision (b) provides: “In the event that the court at 

the time of pronouncing the second or other judgment upon that person had 

no knowledge of a prior existing judgment or judgments, or having 

knowledge, fails to determine how the terms of imprisonment shall run in 

relation to each other, then, upon that failure to determine, or upon that 

prior judgment or judgments being brought to the attention of the court at 

any time prior to the expiration of 60 days from and after the actual 

commencement of imprisonment upon the second or other subsequent 

judgments, the court shall, in the absence of the defendant and within 60 
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days of the notice, determine how the term of imprisonment upon the second 

or other subsequent judgment shall run with reference to the prior 

incompleted term or terms of imprisonment. Upon the failure of the court to 

determine how the terms of imprisonment on the second or subsequent 

judgment shall run, the term of imprisonment on the second or subsequent 

judgment shall run concurrently.”

Section 1170.1, subdivision (a), in turn, provides in relevant part: 

“[W]hen any person is convicted of two or more felonies, whether in the same 

proceeding or court or in different proceedings or courts, and whether by 

judgment rendered by the same or by a different court, and a consecutive 

term of imprisonment is imposed under Sections 669 and 1170, the aggregate 

term of imprisonment for all these convictions shall be the sum of the 

principal term, the subordinate term, and any additional term imposed for 

applicable enhancements for prior convictions, prior prison terms, and 

Section 12022.1. The principal term shall consist of the greatest term of 

imprisonment imposed by the court for any of the crimes, including any term 

imposed for applicable specific enhancements. The subordinate term for each 

consecutive offense shall consist of one-third of the middle term of 

imprisonment prescribed for each other felony conviction for which a 

consecutive term of imprisonment is imposed. . . .” (See Cal. Rules of Court, 

rule 4.452(a) (hereinafter, rule 4.452(a)) [“If a determinate sentence is 

imposed under section 1170.1(a) consecutive to one or more determinate 

sentences imposed previously in the same court or in other courts, the court 

in the current case must pronounce a single aggregate term, as defined in 

section 1170.1(a), stating the result of combining the previous and current 

sentences”].)
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Thus, section 1170.1, subdivision (a) and rule 4.452(a) require that a 

trial court imposing a consecutive sentence to a prior determinate sentence 

pronounce a single aggregate term. Here, the trial court failed to comply 

with this rule. Rather, the court stated for the record that defendant’s 

sentence was to run consecutively to “the sentence” he was already serving

but did not then pronounce a single, aggregate term.

Defendant argues that the “plain language of . . . section 669 provides 

that if a proper aggregate sentence has not been imposed by 60 days from the 

beginning of imprisonment, ‘the term of imprisonment on the second or 

subsequent judgment shall run concurrently.’ (Id., subd. (b).)” According to 

defendant, the remedy for the court’s failure to impose a proper aggregate 

term in accordance with the above stated rules is to modify the sentence to 

make it concurrent. We disagree.

As the People note, section 669 does not require a trial court to 

pronounce a single aggregate term; the statute only requires the court to 

expressly state whether a sentence is to be run consecutively or concurrently. 

Here, the trial court clearly stated on the record that defendant’s sentence, 

one-third the middle term for burglary, was to be served consecutively “to the 

sentence presently being served from other counties.” As such, section 669, 

subdivision (b), requiring imposition of a concurrent term if the court fails to 

determine how the term on the subsequent judgment shall run, was not 

triggered. Indeed, as defendant himself argues, the “requirement that the 

trial court specify the terms of the aggregate sentence within 60 days likely 

exists to preclude ‘inadvertent imposition of consecutive sentences’ by 

allowing so much time to pass during appeal and remand that, by the time of 

resentencing, the defendant has already served a consecutive sentence by 

default. (See In re White (1969) 1 Cal.3d 207, 211.)” Here, the court’s 
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imposition of a consecutive sentence was not inadvertent; it was deliberate. 

(See People v. Edwards (1981) 117 Cal.App.3d 436, 451–542 [§ 669

“inapposite” where the record is clear the trial court intended to impose 

consecutive sentence].)

Finally, we agree with the People that the appropriate remedy for the 

trial court’s failure to pronounce the aggregate term is to remand the case for 

the court to make this pronouncement in accordance with the law, taking into 

account all of defendant’s pending sentences. (See People v. Benton (1979) 

100 Cal.App.3d 92, 102 [“The court’s error [in imposing an unauthorized 

sentence] is more analogous to a failure to pronounce sentence on all counts, 

which is the type of unauthorized sentence that can be corrected by remand 

on the defendant’s appeal”]; People v. Cheffen (1969) 2 Cal.App.3d 638, 642–

643 [failure to pronounce judgment may be rectified on remand where 

defendant suffered no prejudice as a result of the delay and no miscarriage of 

justice occurred].) While this court has the authority to correct clerical errors

(People v. Mitchell (2001) 26 Cal.4th 181, 185), as defendant acknowledges, 

the record in this case is unclear with respect to the status of defendant’s

previously imposed sentences.3

3 To be clear, we remand only for the trial court to comply with section 

1170.1, subdivision (a), which provides that “the aggregate term of 

imprisonment for all these convictions shall be the sum of the principal term, 

the subordinate term, and any additional term imposed for applicable 

enhancements for prior convictions, prior prison terms, and Section 12022.1.” 

(See In re Reeves (2005) 35 Cal.4th 765, 773 [“A court that decides to run 

terms consecutively must create a new, ‘aggregate term of imprisonment’ 

(§ 1170.1, subd. (a)) into which all the consecutive terms merge”].) The trial 

court has no authority on remand to modify provisions of the judgment that 

affect the length of time of imprisonment. (See In re Pedrini (1949) 33 Cal.2d 

876, 879–880 [“the failure of the trial court to specify the order in which the 

sentences run does not, in the circumstances, make it impossible to carry out 

the apparent intent and direction that the sentences shall run consecutively 
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DISPOSITION

The matter is remanded to the trial court for pronouncement of an 

aggregate sentence in accordance with the applicable law. The judgment is 

otherwise affirmed.

in relation to each other”], disapproved on other grounds in People v. Thomas

(1959) 52 Cal.2d 521, 534.)
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_________________________

Jackson, J.

WE CONCUR:

_________________________

Petrou, Acting P. J.

_________________________

Wiseman, J.*

A157776/People v. Rushan Safarov

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.