Opinion
F085766
04-24-2024
THE PEOPLE, Plaintiff and Respondent, v. PABLO FALCON, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR055486 . Dale J. Blea, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Defendant and appellant Pablo Falcon appeals his sentence following conviction on two counts of attempted murder, discharging a firearm from a motor vehicle, discharging a firearm in a grossly negligent manner, possession of stolen property, and various firearm enhancements. The jury also found true a number of aggravating factors. Appellant does not contest his conviction, but argues the trial court erred in sentencing him for a felony on count 8, which was charged only as a misdemeanor violation for receiving stolen property. Appellant also requests the abstract of judgment be corrected to reflect the oral pronouncements of judgment by the court. The People agree with each of appellant's arguments. We agree appellant must be resentenced, because he was improperly sentenced to a felony on count 8, which was charged only as a misdemeanor. Since a new abstract of judgment will issue following resentencing, we need not direct any corrections to the current abstract of judgment at this time.
BACKGROUND
Because the factual background of the case is not relevant to the issues raised on appeal, we do not discuss it here. On October 24, 2022, appellant was charged by first amended information with eight counts, including two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a); counts 1 and 2); discharging a firearm both at and from a motor vehicle (§§ 26100, subd. (d), 246; counts 3 and 4), as well as discharging a firearm in a grossly negligent manner (§ 246.3, subd (a); count 5); two counts related to possession and distribution of a controlled substance (§§ 11378, 11379, subd. (a); counts 6 and 7); and one count of possession of stolen property (§ 496, subd. (a); count 8). On November 9, 2022, appellant was convicted of counts 1 through 5 and count 8; the jury found appellant not guilty on the counts related to possession and distribution of a controlled substance.
All further statutory references are to the Penal Code.
Although charged as a misdemeanor in the first amended information, the trial court sentenced appellant on count 8 to the middle term of two years, which is authorized only for those violations of section 496, subdivision (a) charged as a felony. (See §§ 496, subd. (a); 1170, subd. (h).) Since the sentences imposed by the court for the other counts are not contested, they are omitted.
DISCUSSION
I. The Trial Court Erred in Sentencing Appellant For a Felony on Count 8
Count 8 of the first amended information charged appellant with a misdemeanor violation of section 496, subdivision (a). Section 496, subdivision (a) is colloquially known as a "wobbler," i.e., an offense that may be charged either as a felony or as a misdemeanor. (See § 496, subd. (a); People v. Superior Court (Mitchell) (2023) 94 Cal.App.5th 595, 598, review granted Nov. 21, 2023, S281950; People v. Varner (2016) 3 Cal.App.5th 360, 369, overruled on other grounds by People v. Page (2017) 3 Cal.5th 1175; People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355, fn. 9.) Wobblers are deemed to be felonies unless charged as a misdemeanor. (People v. Statum (2002) 28 Cal.4th 682, 685.) If a wobbler is charged as a misdemeanor, it is treated as a misdemeanor for all purposes, so long as the defendant did not object to it being charged as a misdemeanor. (§ 17, subd. (b)(4).) It is axiomatic a defendant may not be convicted of an offense with which he was not charged, and that doing so would violate due process. (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on other grounds by People v Guiuan (1998) 18 Cal.4th 558; In re Hess (1955) 45 Cal.2d 171, 174-175.)
Appellant does not claim this error was preserved, but rather states this is an example of an unauthorized sentence being imposed, which is a "narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) Respondent agrees both that the court erred and that the sentence was unauthorized.
In this case, the People charged count 8 as a misdemeanor. Under section 17, count 8 is therefore treated as a misdemeanor for all purposes. (§ 17, subd. (b)(4).) Sentencing appellant for a felony when he was charged only with a misdemeanor would violate due process. (People v. Toro, supra, 47 Cal.3d at p. 973, disapproved on other grounds by People v. Guiuan, supra, 18 Cal.4th at p. 558; In re Hess, supra, 45 Cal.2d at pp. 174-175.) Accordingly, since the trial court had no authority to sentence appellant for a felony violation of section 496, we find this sentence unauthorized. As such, we remand this case for resentencing, particularly since count 8 was designated as the principal determinate term.
II. The Abstract of Judgment Contains Errors
Both parties urge the abstract of judgment issued by the trial court does not conform to the oral pronouncement of the court at sentencing, and therefore is incorrect. It is well established that "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385; see also People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) "Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error." (People v. Price (2004) 120 Cal.App.4th 224, 242.) Clerical errors may be corrected by this court at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Additionally, where the trial court fails to determine whether a sentence is to run concurrently or consecutively, statute directs that it is to run concurrently. (§ 669, subd. (b).)
We agree both the abstract of judgment and the minute order reflecting appellant's sentence contain clerical errors. At the sentencing hearing, the trial court orally pronounced the determinate sentence as follows: for count 3, the middle term of two years; for count 4, the middle term of five years; for count 5, the middle term of two years; and for count 8, the middle term of two years. The court designated count 8 as the principal term. The court also imposed an enhancement of 25 years to life on counts 3 and 4. Each of counts 3, 4, and 5, as well as the enhancements to counts 3 and 4, were stayed pursuant to section 654. The court made no pronouncement as to whether the sentences should be served concurrently or consecutively.
The minute order reflected the sentences as follows: for count 3, eight months, being one-third the middle term of two years; for count 4, the middle term of five years; for count 5, eight months, being one-third the middle term of two years; and for count 8, the middle term of two years. The minute order designated count 4 as the principal term, and stated counts 3 and 5 were imposed consecutive to count 4. The abstract of judgment reflects, too, that counts 3 and 5 were imposed as one-third the middle term, and consecutive.
Appellant also notes the indeterminate abstract of judgment shows appellant was sentenced to a 25-years-to-life term for the gun enhancement in count 2, but fails to reflect that the enhancement was determined to run concurrent to the same enhancement found for count 1. Respondent agrees, and further points out the 25-years-to-life enhancements on counts 3 and 4 were stayed pursuant to section 654, although the abstract of judgment does not reference this. Lastly, appellant notes the abstract of judgment reflects a $300 probation revocation fine was imposed pursuant to section 1202.44, which should instead be a $300 parole revocation fine the court imposed pursuant to section 1202.45.
Since appellant must be resentenced due to the sentencing error on count 8, following which a new abstract of judgment will issue, we decline to order any amendment to the current abstract of judgment. We are confident that, following resentencing, the newly issued abstract of judgment will not contain these or similar clerical errors.
DISPOSITION
Appellant's sentence is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion. --------- Notes: [*] Before Franson, Acting P. J., Pena, J. and DeSantos, J.