Opinion
H046685
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN JESUS ELIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 18CR009155, 17CR002229)
A jury found appellant Juan Jesus Elias guilty of four counts of second degree robbery, attempted second degree robbery, criminal threats, assault with a firearm, possession of a weapon by a felon, and receiving stolen property. The jury also found true five allegations related to Elias's personal use of a firearm. The trial court sentenced Elias to 20 years in prison for his crimes.
On appeal, Elias claims the trial court erred by not applying Penal Code section 654 to stay the prison term imposed for his criminal threats conviction. Elias also contends that, due to the trial court's miscalculations, the one-year prison term imposed for his attempted robbery conviction should be reduced to eight months and his presentence custody credit should be increased.
We conclude the trial court erred under Penal Code section 654 in failing to stay execution of the sentence on the criminal threats conviction. In addition, we agree with the parties that the prison term for the attempted robbery conviction should be reduced to eight months, and Elias is entitled to additional presentence custody credit. Further, we determine the trial court failed to impose an authorized sentence on count 11. Accordingly, we vacate the sentence and remand the matter to the trial court with directions that it stay the sentence for the criminal threats conviction, correct the sentence for the attempted robbery conviction, award the proper amount of presentence custody credit, and resentence Elias on count 11. The convictions are affirmed.
I. FACTS AND PROCEDURAL BACKGROUND
The Monterey County District Attorney filed an amended information charging Elias with second degree robbery (Pen. Code, § 211 ; counts 1, 4, 5 & 6), attempted second degree robbery (§§ 664/211; count 2), criminal threats (§ 422; count 3), assault with a firearm (§ 245, subd. (a)(2); count 7), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 8), identity theft (§ 530.5, subd. (a); counts 9 & 10), and misdemeanor receiving stolen property, not exceeding $950 (§ 496, subd. (a); count 11). (Case No. 18CR009155.) The information also included five allegations that Elias personally used a firearm (§ 12022.5, subd. (a), counts 1, 6 & 7; § 12022.53, subd. (b), counts 1, 6).
Unspecified statutory references are to the Penal Code.
At Elias's jury trial, the prosecution presented testimony of the four robbery victims: Areli H., regarding a robbery on December 22, 2017 (count 1); Faustina M. and Maricela M., regarding a robbery on January 26, 2018 (counts 4 & 5); and Gladys G., regarding a robbery on January 27, 2018 (count 6). Generally, the victims said a man approached them while they were outdoors in Salinas, forcibly took their purses, and made threats against them or their children. The man used a gun while robbing Areli and Gladys. He threatened to "blow off [Areli's] head" unless she gave him her purse. While accosting Gladys, the man pointed a gun at the head of her nine-year-old son, William R., and demanded that Gladys give him her purse or he would kill William. William—the victim of the assault with a firearm alleged in count 7—also testified about the incident.
We provide only a limited summary of the trial testimony because many of the details are not material to the issues raised on appeal.
Martha V. testified about an attempted robbery and criminal threat that occurred on December 26, 2017 (counts 2 & 3). On that date, Martha walked to a laundromat with her 10-year-old son. She had a laundry basket in her hands and a purse on her shoulder. As she walked, Elias approached her and grabbed her purse, trying to pull it from her shoulder. Martha dropped the basket and grabbed onto her purse with both hands. Her son was on her left side, and Elias was on her right. Elias said, " 'Give me your purse, you damn bitch,' " followed by, " 'Either that or I'll pull out the gun and I'll kill you and the child.' " Martha did not give up her purse. Her son threw a water bottle at Elias's face. Elias let go of the purse, walked away, and got into a car. Martha cried and screamed for help during the incident. She was scared when Elias said he would shoot her and her son. It appeared to Martha that her son was very scared, too.
Salinas police officer Jacqueline Bohn testified about items found by police inside a room shared by Elias and another person, Yazmin Amezcua. The items discovered included mail belonging to various people, a check made out to Elias and signed by a person who did not know him and never authorized anyone to use her checkbook, an identification card with Elias's picture and someone else's name, and an identification card with Amezcua's picture and someone else's name.
Another Salinas police officer, Steven Hoyte, testified about stopping a car driven by Elias on January 28, 2018. Amezcua was in the front passenger seat. Police found various items in the car, including a cell phone, Faustina M.'s purse, Gladys G.'s identification card, beanie caps with holes cut in them, and a Spiderman mask. In addition, police discovered a .22 caliber revolver in Amezcua's bra.
At the close of the prosecution's case in chief, the prosecutor moved to reduce the two identity theft charges to misdemeanors (§ 530.5, subd. (c)(1); counts 9 & 10). The trial court granted the motion. Elias then pleaded no contest to the amended counts 9 and 10. Elias did not present any evidence at trial, and he stipulated that he had previously been convicted of a felony.
The jury found Elias guilty on all remaining counts of the amended information and found the firearm use allegations true.
On February 15, 2019, the trial court sentenced Elias to a total term of 20 years imprisonment, calculated as follows:
| Count 1: Second degree robbery | 3 years |
| Count 1: Firearm use allegation (§ 12022.53) | 10 years |
| Count 1: Firearm use allegation (§ 12022.5) | 10 years, stayed |
| Count 2: Attempted second degree robbery | 1 year, consecutive |
| Count 3: Criminal threats | 2 years, concurrent |
| Count 4: Second degree robbery | 1 year, consecutive |
| Count 5: Second degree robbery | 1 year, consecutive |
| Count 6: Second degree robbery | 1 year, consecutive |
| Count 7: Assault with a firearm | 1 year, consecutive |
| Count 7: Firearm use allegation (§ 12022.5) | 1 year and 4 months, consecutive |
| Count 8: Possession of a firearm by a felon | 8 months, consecutive |
| Count 9: Identity theft | 180 days, concurrent |
| Count 10: Identity theft | 180 days, concurrent |
| Count 11: Receiving stolen property | 2 years, concurrent |
The trial court awarded Elias 364 days of actual credit for time served and 54 days of conduct credit, for a total of 418 days of presentence custody credit.
II. DISCUSSION
Elias raises three claims on appeal. He first contends the trial court should have stayed under section 654 the two-year concurrent prison term imposed on count 3. In addition, he claims the one-year consecutive prison term imposed on count 2 should be reduced to eight months under applicable sentencing statutes. He lastly asserts the trial court miscalculated the time he spent in custody and should have awarded him additional actual custody and conduct credits. We address each issue in turn.
Although Elias's appeal arises from judgments in two cases (docket Nos. 17CR002229 and 18CR009155), he does not challenge any aspect of the judgment in docket No. 17CR002229.
A. Section 654 (Count 3—Criminal Threat)
Elias contends the two-year concurrent sentence imposed for his criminal threats conviction on count 3 violated section 654. He maintains that "[b]ecause the threat occurred during the ongoing attempted robbery [charged in count 2] and was part of the force in trying to get Martha V. to hand over her purse, the threat term needs to be stayed." He argues further that "there was only a single purpose for the threat—to rob Martha of her purse" and that threat "was part and parcel of the robbery, was not divisible by time, and happened during the ongoing crime."
Neither the parties nor the trial court mentioned section 654 in relation to count 3 at Elias's sentencing hearing. The prosecutor, however, recommended in a sentencing memorandum that Elias's sentence on count 3 should be "[s]tayed pursuant to [Penal Code] § 654." (Italics omitted.) Regardless, Elias's failure to object does not forfeit his appellate claim of error because "[i]t is well settled . . . that the court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338; People v. Le (2006) 136 Cal.App.4th 925, 931.)
The Attorney General counters that the trial court implicitly determined upon substantial evidence that section 654 did not apply to count 3 because there were multiple victims of Elias's criminal conduct. The Attorney General asserts that, regardless of the fact that no crime was alleged as to Martha's son, "under the multiple victim exception to the general proscription against multiple punishment, even where a defendant entertains only a single objective during an indivisible course of conduct, he may be punished for each crime of violence where there are multiple victims."
Elias replies that Martha V. was the only victim named in counts 2 and 3, and the prosecutor specifically argued that Martha was the sole victim of these crimes. In addition, Elias argues that two cases cited by the Attorney General addressing consideration of multiple victims in sentencing are inapt because they do not analyze the application of section 654. He further argues the evidence does not support that a crime was committed under section 422 against Martha's son, who did not testify at trial.
1. Legal Principles
Section 654, subdivision (a), provides in pertinent part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.] This is 'to ensure that a defendant's punishment will be commensurate with his culpability.' " (People v. Kopp (2019) 38 Cal.App.5th 47, 90 (Kopp), review granted on another issue Nov. 13, 2019, S257844.) Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. (People v. Deloza (1998) 18 Cal.4th 585, 591-592 (Deloza).)
Application of section 654 "requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Only if the case involves more than one act does a court consider whether the case involves a course of conduct. (Ibid.) "At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act." (Id. at p. 312.) "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.) If the convictions involve more than one act, the court reaches "step two of the section 654 analysis: whether the [course of conduct] involved multiple intents and objectives." (Id. at p. 316.)
There is, however, a multiple victim exception to section 654. The California Supreme Court has "long held that 'the limitations of section 654 do not apply to crimes of violence against multiple victims.' " (People v. Oates (2004) 32 Cal.4th 1048, 1063 (Oates).) "Under this exception, 'even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.' [Citations.] The reason for the multiple victim exception is that 'when a defendant " 'commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,' his greater culpability precludes application of section 654." ' " (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781.) The multiple victim exception "permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent." (Id. at p. 1784.) Both criminal threats (§ 422) and attempted robbery (§§ 664/211) constitute an act of violence for purposes of this exception to section 654. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024 (Solis) [criminal threats]; Deloza, supra, 18 Cal.4th at p. 595 [attempted robbery].)
Section 422, subdivision (a), provides: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Section 211 provides: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
Whether a defendant harbored a single intent and objective is a factual question; the applicability of section 654 to settled facts is a question of law. (See Corpening, supra, 2 Cal.5th at p. 312; People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.) When interpreting the scope and meaning of the multiple victim exception, we apply a de novo standard of review. (See People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) Regarding whether the facts establish there were multiple victims of the crimes of violence, we review such finding for substantial evidence. (See People v. Centers (1999) 73 Cal.App.4th 84, 101.) Appellate courts will sustain a trial court's implied factual determination in the application of section 654 if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
2. Analysis
At trial, Martha V. testified that Elias threatened to kill her and her child if she did not give up her purse. Elias made this statement as he tried to pull Martha's purse away from her. She also testified that she and her son were scared at that time. On appeal, the Attorney General does not argue that the evidence demonstrates Elias's attempted robbery and criminal threats involved a divisible course of conduct or multiple objectives. Instead, the Attorney General maintains that the trial court implicitly determined section 654 did not apply because these two crimes involved more than one victim and were "integrally linked to [Elias's] threats to shoot and kill Martha's son."
Based on our review of the record and Elias's unopposed argument, we conclude the evidence demonstrates that Elias harbored a single intent and purpose when he simultaneously attempted to take Martha V.'s purse by force and threatened to kill her and her son if she did not give up her purse. There is no substantial evidence here to support an implicit finding that section 654 is inapplicable to Elias's convictions on count 2 and count 3. (See Corpening, supra, 2 Cal.5th at pp. 311-313, 316; People v. Latimer (1993) 5 Cal.4th 1203, 1216; Neal v. State (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 338.)
Having determined that section 654 prohibits unstayed sentences on each count, we turn to whether the multiple victim exception applies. We observe that the amended information did not charge Elias with any crime against Martha V.'s son. Instead, it charged Elias with attempted robbery and criminal threats only against Martha. The prosecutor mentioned in her closing argument that Martha's son appeared scared at the time of Elias's threat. However, when discussing the criminal threats allegation in count 3, the prosecutor focused only on Martha's reaction to the threat. The prosecutor said that Elias's threat "actually caused Martha V to be in sustained fear for her own safety and the safety of her immediate family" and "Martha V's fear was reasonable." In addition, the prosecutor said that Elias intended to threaten Martha specifically, arguing "he wanted that purse so he wanted to threaten her. That's the reasonable inference that you would make." In accord with the charges, the prosecutor's argument, and the jury instructions (which only mentioned Martha), the jurors found Elias guilty of "attempted second degree robbery of Martha V." and "criminal threats to Martha V." (Capitalization omitted.) At Elias's sentencing, the prosecutor noted that "Martha V's ten-year-old son is still waking up with nightmares . . . based on the conduct he was present for," but the prosecutor did not discuss the criminal threats conviction specifically when referencing Martha's son.
The record here demonstrates unequivocally that the jury found Elias guilty of attempted robbery and criminal threats only against a single victim, Martha V. Moreover, although Martha's son was on her left side during the incident (with Elias on her right) and scared when Elias uttered his threat, Martha did not testify whether her son heard the threat. The son did not testify.
Although we must presume every fact that the trial court could reasonably deduce from the evidence when reviewing an implicit finding on a factual question (Kopp, supra, 38 Cal.App.5th at p. 91), " '[a] finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.) Based on our review of the record, Martha's testimony does not provide substantial evidence upon which a trier of fact can reasonably deduce that Elias committed the crime of criminal threats against Martha's son. A criminal threats conviction requires that "a victim: the listener," suffer "sustained fear" and that "the defendant act with the specific intent that his statement be viewed as a threat." (Solis, supra, 90 Cal.App.4th at p. 1025.) There was no evidence at all that Martha's son heard Elias's threat or that the threat caused the son to be in sustained fear for his or his mother's safety. Although there was substantial evidence Martha's son was frightened by the incident with Elias, there was no evidence that the threat itself precipitated the fear.
It is true that, when applying section 654, the trial court is " 'entitled to make any necessary factual findings not already made by the jury.' " (People v. Deegan (2016) 247 Cal.App.4th 532, 545.) But the trial court may not do so in the absence of substantial evidence. (See ibid.) We are especially reluctant to conclude here the trial court impliedly made such a factual finding in the absence of any indication to that effect and where "the fact that makes the exception applicable was not alleged in the information, was not submitted to the trier of fact, and did not become an issue in the case until after the conclusion of the trial." (People v. Cardenas (2015) 239 Cal.App.4th 220, 233.)
The Attorney General cites People v. Oates, supra, 32 Cal.4th 1048 for the general proposition that "[t]he limitations of section 654 do not apply to crimes of violence against multiple victims because a defendant who harms more than one person is more culpable than a defendant who harms only one person." This general assertion does not persuade us that the multiple victim exception applies in the present case. In Oates, the court held that section 654 does not bar imposition of multiple section 12022.53, subdivision (d) enhancements when there are multiple victims. There, defendant fired two shots at a group of five people and hit only one person. (Oates, at pp. 1052-1053.) Defendant was convicted of five counts of attempted premeditated murder, a qualifying offense under section 12022.53. (Id. at p. 1055.) Based on a single injury caused by the intentional discharge of a firearm, the court held that the requirements under section 12022.53, subdivision (d), were met as to each of the five attempted murder convictions and section 654 does not prohibit imposition of separate enhancements with respect to each conviction. (Oates, at p. 1055.) Regarding the multiple victim exception, the court concluded, "Under the 'multiple victim' exception to section 654, defendant may be punished for each of the attempted murder offenses he committed when he fired at the [] group. The subdivision (d) enhancements 'simply follow from' his convictions on those 'substantive offenses.' [Citation.] They 'do not constitute separate crimes or offenses, but simply are the basis for the imposition of additional punishment for the underlying substantive offense.' " (Id. at p. 1066.) Oates is materially distinguishable from the present case. In Oates, the additional punishment for the enhancements flowed from the attendant convictions and were premised on statutory language applying to the great bodily injury or death of "any person," which is not limited to the harm done to a particular victim. (Ibid.) The crime of criminal threats is not so broad in its application and the jury's verdicts here were rendered specifically as to Martha V.
The present case also is distinguishable from People v. Felix (2009) 172 Cal.App.4th 1618, another multiple victim exception case cited by the Attorney General. In Felix, the trial court imposed concurrent sentences for attempted murder of a particular person and shooting at an inhabited dwelling. (Id. at p. 1630.) Although the defendant had intended to kill the named victim when he shot at the dwelling, multiple houseguests were also present in the home at the time. (Ibid.) The Court of Appeal concluded that the multiple victim exception applied because the "houseguests were victimized by the shooting into the dwelling but were not named victims in any other count." (Id. at p. 1631.) The court noted that, "where the crime of shooting at an inhabited residence is involved, a defendant need not be aware of the identity or number of people in the house to be punished separately for each victim." (Ibid.) Felix is inapposite because, unlike the situation in the present case, there was no specific overlap in the victim of the charged crimes. In addition, the elements of a criminal threats crime require greater specificity as to the effect on the victim than do those for shooting at an inhabited dwelling.
The Attorney General's reliance on People v. Guevara (1979) 88 Cal.App.3d 86 and People v. Klaess (1982) 129 Cal.App.3d 820 is unpersuasive because neither case addresses the multiple victim exception to section 654.
Because there is a specific basis in the charges, arguments, and verdicts to conclude that Martha V. alone was the only victim of both crimes and no substantial evidence supporting a criminal threats crime against Martha's son, we conclude that the multiple victim exception does not apply to the convictions for count 2 and count 3. The trial court therefore erred by imposing concurrent terms for those two counts, and we will order the term for the criminal threats conviction stayed.
B. Sentence on Count 2 (Attempted Robbery)
The trial court sentenced Elias on count 2 to "one-third the middle term of one year consecutive" to count 1. Elias and the Attorney General agree that the one-year prison term imposed on count 2 is erroneous and should be reduced to eight months. We concur.
Because the middle term for attempted robbery is two years, the trial court should have imposed a consecutive term that is one-third of two years, i.e., eight months. (See People v. Neely (2009) 176 Cal.App.4th 787, 797; see also §§ 213, subd. (b), 1170, subd. (h)(1), 1170.1, subd. (a).) Accordingly, we will direct the trial court to correct the sentencing minute order and abstract of judgment to reflect a sentence of eight months on count 2. (See In re Harris (1993) 5 Cal.4th 813, 842 ["An appellate court may 'correct a sentence that is not authorized by law whenever the error comes to the attention of the court.' "]; see also People v. Smith (2001) 24 Cal.4th 849, 854.)
C. Presentence Custody Credit
Elias claims, and the Attorney General concedes, that the trial court miscalculated Elias's presentence custody credit. The parties are correct.
"A defendant is entitled to actual custody credit for 'all days of custody' in county jail . . ., including partial days. [Citations.] Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48; § 2900.5, subd. (a).) When a defendant is convicted of certain violent felonies (including second degree robbery), his or her conduct credits are limited to 15 percent of the actual days in custody. (§§ 2933.1, subds. (a) & (c), 667.5, subd. (c)(9).) An issue regarding miscalculation of presentence custody credit is not forfeited by a failure to object at sentencing and may be corrected on appeal. (See People v. Guillen (1994) 25 Cal.App.4th 756, 764; see also People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8; In re Jose T. (1991) 230 Cal.App.3d 1455, 1464.)
Here, the trial court awarded Elias 364 days of credit for time in custody. The parties agree that, by the time of Elias's sentencing, his actual time in custody was 384 days—from January 28, 2018, to and including February 15, 2019. Elias, therefore, is entitled to 20 additional days of actual custody credit. The miscalculation of Elias's actual time in custody resulted in an erroneous award of 54 days of conduct credit. Based on the 384 days of Elias's actual custody, the correct conduct credit award is 57 days (i.e., 15 percent of the actual custody). Therefore, the correct total presentence custody credit here is 441 days. We will order the sentencing minute order and abstract of judgment modified accordingly.
D. Sentence on Count 11
At Elias's sentencing hearing on February 15, 2019, the trial court said, "As to Count 11, felony violation of [section] 496(a), the court imposes two years concurrent." (Italics added.)
Count 11 of the amended information, however, charged only a misdemeanor for receiving stolen property "the value of which does not exceed $950" under section 496, subdivision (a). Further, the jury was not instructed and did not return any finding regarding the value of the property received.
According to the sentencing minute order, dated February 15, 2019, the parties stipulated "[a]t a later time" (not otherwise specified in the minute order) that count 11 is a misdemeanor and, as such, should be sentenced as a misdemeanor.
The stipulation is reflected in the following parenthetical statement in the minute order: "(At a later time, parties stipulate that count 11 is a misdemeanor and not a felony and that count 11 be sentenced as a misdemeanor)."
On appeal, the parties note the stipulation in their briefs. However, the parties do not point this court to any portion of the record indicating that the trial court actually imposed a substitute misdemeanor sentence on count 11. We note that the sentencing minute order includes the following statement above the parenthetical stipulation: "Serve 180 days in County Jail. [¶] Jail sentence shall be served concurrent with. [sic] [¶] Jail sentence may be served in any penal institution." Although this 180-day concurrent jail term might be the intended misdemeanor sentence for count 11, it does not reference count 11 specifically. Further, we see nothing in the record to reflect that the trial court actually imposed this sentence on count 11.
The parties do not address what should be done about the apparent lack of an authorized sentence on count 11. Given that the record before us does not state an authorized sentence on count 11, we direct the trial court on remand to resentence Elias for his misdemeanor conviction on count 11, in accord with the jury's verdict.
III. DISPOSITION
The judgment is reversed and the matter remanded to the trial court. Elias's convictions are affirmed. Upon remand, the trial court is directed to stay execution of the sentence imposed on count 3 pursuant to section 654, correct the sentence on count 2 to indicate a sentence of eight months, award a total of 441 days in presentence custody credit (384 actual days, plus 57 days conduct credit), and resentence Elias on count 11. After ordering these modifications and resentencing Elias on count 11, the trial court is directed to issue a new sentencing minute order and an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Danner, J.
I CONCUR:
/s/_________
Greenwood, P.J.
Grover, J.
I concur with the majority reasoning in all respects except for requiring resentencing for count 11. Mindful of scarce resources at the trial level, I see neither a need nor a request for the trial court to exercise its discretion regarding the stipulated misdemeanor sentence for that count.
The majority opinion accurately quotes the sentencing minute order with respect to count 11, and I agree that the content of the minute order - ultimately the signing judicial officer's responsibility - falls short in fulfilling its sole function of clearly recording what occurred in the trial court. But in my view the sentencing minute order read in toto is reasonably susceptible of only the interpretation that the trial court imposed the concurrent 180-day jail sentence stipulated to by the parties, which is unchallenged on appeal. I believe the record contains enough uncontradicted information about the trial court's acceptance of the parties' stipulation to permit us to order clarification of the sentencing record for count 11 without the need for a new sentencing hearing and its attendant burdens on the trial court and counsel.
Just as we are directing the trial court to correct the sentences for counts 2 and 3 and the calculation of presentence custody credits, I would direct the trial court to modify the language of the sentencing minute order regarding count 11 to conform to the language used for the other 10 counts, to wit: "As to count 11; [¶] By out of court stipulation of the parties, serve 180 Days in County Jail. [¶] Jail sentence shall be served concurrent. [¶] Jail sentence may be served in any penal institution."
/s/_________
Grover, J.