Opinion
G054662
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. EUGENE EVERAL BAIRD, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF1437) OPINION Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed in part, reversed in part, and remanded with directions. Request for judicial notice granted. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Eugene Everal Baird stole 33 luxury handbags with a total value of more than $7,000. He pled guilty to five counts of second degree commercial burglary and four counts of grand theft. As provided in the guilty plea agreement, the court sentenced him to a total term of 16 months in prison, to be served consecutive to the sentences he was then serving in two Los Angeles County cases.
Defendant contends the trial court erred by failing to pronounce a single aggregate term that included the sentences imposed in the Los Angeles cases and the sentences imposed in this case. The People concede the error and agree the court should have designated the longest term imposed in the three cases as the principal term, and all consecutive terms imposed as the subordinate terms. We agree the court erred by failing to impose a single aggregate term as required by Penal Code section 1170.1.
All further statutory references are to the Penal Code
The People raise two sentencing errors. First, they claim the court improperly determined the length of the concurrent sentences imposed on some counts in this case. Defendant concedes the court should have imposed full term (not one-third of the midterm) sentences on those counts but contends the court corrected the error in the abstract of judgment. We conclude the court's erroneous oral pronouncement of judgment controls and must be corrected, notwithstanding the abstract of judgment.
Although the People did not appeal from the judgment, they may raise on appeal the question of whether defendant's sentence was authorized by law. (§ 1238, subd. (a)(10); People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence may be corrected at any time by appellate court].)
The People also contend the abstract of judgment incorrectly reflects only one court security fee and one criminal conviction assessment, although the court correctly imposed a court security fee and a criminal conviction assessment for each conviction in this case. Defendant concedes this issue and we accept that concession.
We reverse the judgment and remand the matter to the court with directions to correct these sentencing errors. In all other respects, the judgment is affirmed.
FACTS
In March 2015, defendant stole eight Tory Burch handbags worth $3,999.92 from Saks Off 5th. In May 2015, he stole 10 Kate Spade handbags valued at $2,071.70 from Nordstrom Rack. On June 21, 2015, defendant stole another eight Tory Burch handbags from Saks Off 5th, worth $1,032.92. On June 27, 2015, he entered a Saks Off 5th with the intent to steal merchandise worth over $950. That same day, he stole another seven handbags from Nordstrom Rack valued at $1,300.
Counts 1, 3, 5, 7, and 8 charged defendant with second degree commercial burglary. Counts 2, 4, 6, and 9 charged defendant with grand theft of personal property. Defendant pled guilty to all counts. He also admitted having a prior felony conviction that qualified as a strike and served five prior prison terms. The guilty plea form indicated defendant's sentence was to "run consecutive to Los Angeles County cases VA141348-01 & GA096926-01."
We note that after briefing defendant submitted a letter to this court identifying Ventura County case No. 2015026530, where he was sentenced to an additional eight months in prison.
Pursuant to the plea agreement, the court sentenced defendant to a total term of 16 months in state prison, consisting of consecutive eight month (one-third of the midterm) sentences on each of counts 1 and 3. On each of counts 5, 7, and 8, the court orally imposed concurrent eight month (one-third of the midterm) terms. However, the clerk's minute order and abstract of judgment listed these as 16 month (full low) terms.
The court ordered the sentence to: "run fully consecutive to the case in Los Angeles, VA141348-01, GA096926-01, where you have a concurrent prison sentence." The court struck the prior conviction enhancements for sentencing purposes. It also stayed punishment on counts 2, 4, 6, and 9 under section 654. And the court ordered defendant "to pay a mandatory fee of $70 for each count for which you're convicted."
DISCUSSION
1. The Trial Court Erred In Failing to Pronounce a Single Aggregate Term.
Defendant argued the court erred by failing to pronounce a single aggregate term which included the previously imposed sentences in the two Los Angeles cases. The People agree and so do we.
Section 1170.1 and California Rules of Court, rule 4.452 require a trial court to pronounce a single aggregate term when imposing a determinate sentence consecutive to any previously imposed determinate sentence. "[W]hen a defendant is sentenced consecutively for multiple convictions occurring in different proceedings, the second court designates the longest term as the principal term, and any other consecutive term is considered a subordinate term, for which the sentence can be no more than one-third the midterm for the offense. [Citations.]" (People v. Baker (2002) 144 Cal.App.4th 1320, 1328-1329.)
Pursuant to the plea agreement, the court sentenced defendant to a 16-month term (consisting of eight-month terms on each of counts 1 & 3) to run consecutive to the sentences he was then serving in Los Angeles County (case Nos. VA141348-07 & GA096926-01). But the court failed to pronounce a single aggregate term that included the prior determinate sentences from the Los Angeles cases, as required by section 1170.1, subdivision (a). This was error.
Because the trial court had a duty to determine how to combine the consecutive terms for defendant's multiple offenses, pursuant to section 1170.1, we must vacate defendant's sentence and remand the matter for the court to pronounce a single aggregate term that includes all previously imposed terms (e.g., 6 years = 4 years 4 months + 16 months). The court also must provide an abstract of judgment reflecting the corrected sentence. (People v. Montalvo (1982) 128 Cal.App.3d 57, 64.) 2. The Trial Court Erred In Computing the Concurrent Terms.
The People argue the court erred by determining the length of defendant's concurrent terms on counts 5, 7, and 8 as one-third the midterm, rather than the full base term of 16 months, 2 or 3 years. Defendant concedes the court orally imposed an unauthorized sentence on these counts, but contends the court corrected the improper sentence in the abstract of judgment. We agree the court erred.
"Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula." (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3.) --------
The rendition of judgment is the oral pronouncement and "'[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation]'" (People v. Jones (2012) 54 Cal.4th 1, 89.) Further, an "unauthorized sentence is '"subject to judicial correction when it ultimately [comes] to the attention of the trial court or [reviewing] court" [citation].'" (People v. Cates (2009) 170 Cal.App.4th 545, 552.)
The sentencing minute order and the abstract of judgment both show defendant was sentenced to state prison for the low term of 16 months on counts 5, 7, and 8. However, because the court's erroneous oral pronouncement of judgment controls, we reverse and remand for resentencing on these counts. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.) 3. The Abstract of Judgment Should be Corrected to Reflect a Court Security Fee and a Criminal Conviction Facilities Assessment for Each Count.
The People also contend the abstract of judgment erroneously indicated only one $40 court security fee and one $30 criminal conviction facilities assessment was imposed, rather than a fee and assessment for each count, as ordered by the trial court. Defendant concedes the point, and we agree. These fines and assessments are mandatory. (People v. Woods (2010) 191 Cal.App.4th 269, 272.) Thus, the abstract of judgment must be corrected to impose a fee and an assessment for each conviction.
DISPOSITION
The judgment is reversed and the case is remanded with directions for the court to pronounce a single aggregate prison term reflecting all counts, and to impose an authorized sentence on counts 5, 7, and 8. The clerk of the superior court is ordered to modify the abstract of judgment to include a $40 court security fee and a $30 criminal conviction facilities assessment for each count and forward a copy to the Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed. The request for judicial notice is granted.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.