Opinion
A156392
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER WILLIAM BRADSHAW, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17NF001389, 17NF011917, 18NF000589) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Christopher William Bradshaw appeals from an order modifying his sentence by increasing a concurrent term. He contends the court increased the aggregate term after recalling his sentence under Penal Code section 1170, subdivision (d), from four years (48 months) to four years, eight months (56 months). Appellant argues that the court lacked jurisdiction to do so and that his sentence must be reduced to the original four years (48 months).
Further statutory references are to the Penal Code.
The parties do not dispute that a court may recall a sentence on its own motion within 120 days of judgment and may impose any lawful sentence, "provided the new sentence, if any, is no greater than the initial sentence." (§ 1170, subd. (d); People v. Johnson (2004) 32 Cal.4th 260, 265-266 [court may not increase aggregate term]; see People v. Karaman (1992) 4 Cal.4th 335, 350 (Karaman).) But they disagree as to the length of the sentence originally imposed, and whether the sentence modification increased the aggregate term. We conclude appellant was originally sentenced to an aggregate term of four years, eight months (56 months), and when it increased the concurrent term, the court was simply acting to correct an unauthorized sentence. Appellant therefore is not entitled to have his sentence reduced to four years based on a violation of section 1170, subdivision (d). We order that the abstract be modified, correctly reflect the sentence imposed after recall, but otherwise affirm.
I. BACKGROUND
On May 3, 2017, pursuant to a negotiated agreement, appellant was placed on felony probation in case number 17NF001349 (case 1349) after he pled no contest to assault by means of force likely to cause great bodily injury and admitted a great bodily injury enhancement. (§§ 245, subd. (a)(4), 12022.7, subd. (a).) On August 23, 2018, while still on probation, appellant pled no contest to commercial burglary (§§ 459, 460, subd. (b)) and identity theft (§ 530.5, subd. (a)) and admitted an allegation under the strikes law (§ 1170.12) in case number 17F011917 (case 1917). He also pled no contest to commercial burglary (§§ 459, 460, subd. (a)) and admitted a strike (§ 1170.12) in case number 18NF000589 (case 0589). Appellant admitted a probation violation in case 1349.
Appellant was sentenced on all three cases on December 14, 2018. Although not a model of clarity, the record reflects that the following sentence was orally pronounced: (1) as the principal term, the two-year lower term for the assault count in case 1349 (§ 245, subd. (a)(4); 1170.1, subd. (a)); (2) the 16-month lower term, concurrent, for the commercial burglary count in case 1917, and a consecutive term of 16 months (one-third the middle term, doubled pursuant to the strikes law) for the identity theft in case 1917 (§§ 460 subd. (b), 461, subd. (b), 530.5, subd. (a), 1170, subd. (h)(1), 1170.1, subd. (a), 1170.12, subd. (c)(1)); (3) a consecutive term of 16 months (one-third the middle term, doubled pursuant to the strikes law) for the commercial burglary in case 0589 (§§ 460 subd. (b), 461, subd. (b), 1170.1, subd. (a), 1170.12, subd. (c)(1)). This adds up to an aggregate term of four years eight months (56 months).
The court did not impose or strike the enhancement under section 12022.7, subdivision (a) that was attached to this count. (See People v. Meloney (2003) 30 Cal.4th 1145, 1155.) The failure to impose or strike an enhancement is a legally unauthorized sentence (People v. Bradley (1998) 64 Cal.App.4th 386, 391), but in this case the People would be estopped from arguing the enhancement should be imposed rather than stricken in the interests of justice because they urged the court to impose the sentence it did. In the interests of justice, the amended abstract of judgment shall reflect that this enhancement is stricken.
The abstract of judgment from the sentencing reflected an aggregate sentence of four years (48 months). As a general rule, when the record of the court's oral pronouncement of judgment conflicts with the abstract of judgment or the clerk's minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; where discrepancy exists between oral judgment and that entered in the minutes, clerical error in minutes is presumed]; People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery).) Appellant was thus sentenced to four years eight months (56 months) on December 14, 2018, the sentence that was orally pronounced.
The minute order in case 1917 incorrectly indicates that the sentence on the commercial burglary count was consecutive and the sentence on the identity theft count was concurrent, when the opposite was true. This error does not, however, affect the aggregate term. --------
On April 3, 2019 (within 120 days of the December 14, 2018 sentencing), a hearing was held in which the court indicated it had received a note from "the appellate attorney" stating it had made a mistake in calculating the concurrent sentence on the commercial burglary count in case 1917, and that it should be 32 months concurrent, or the low term doubled pursuant to the strikes law, rather than the 16-month lower term originally imposed. (§ 461, subd. (b), 1170.12, subd. (c)(1).) The court modified the sentence accordingly, but in all other respects, the sentence remained the same.
II. DISCUSSION
A. There Was No Unlawful Increase of Appellant's Sentence
In general, a court is without jurisdiction to change a criminal defendant's sentence once execution of the sentence has commenced. (Karaman, supra, 4 Cal.4th at p. 344.) There are two exceptions to this rule. First, a sentence which is not statutorily authorized can be corrected whenever it comes to the court's attention. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) Second, the trial court "may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary [of the Department of Corrections and Rehabilitation] or the Board of Parole Hearings in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (§ 1170, subd. (d)(1).)
Appellant argues the original aggregate sentence imposed on December 14, 2018 was four years (48 months), and argues that the court improperly increased the term to four years eight months (56 months) on April 3, 2019. We agree a court lacks jurisdiction to increase a lawful sentence after formal entry in the minutes. (Karaman, supra, 4 Cal.4th at p. 349-350.) But we disagree that this is what happened. As set forth above, appellant was originally sentenced to four years eight months (56 months), notwithstanding that the abstract of judgment erroneously stated the sentence totaled four years. The modification on April 3, 2019 did not change the aggregate term. (Zackery, supra, 147 Cal.App.4th at p. 385.)
Appellant argues that the original sentence imposed on December 14, 2018 was comprised only of a term of 16 months for the commercial burglary in case 1917, a consecutive 16 months for the identity theft in case 1917, and a consecutive 16 months for the commercial burglary in case 0589. This is incorrect; the trial court imposed a two-year sentence on the assault conviction in case 1349 and made that term the principal count. That did not change merely because appellant had already earned custody credits exceeding that sentence. The 16-month term for commercial burglary in case 1917 was run concurrently to the sentence on the other counts; "concurrent terms are not part of the principal and subordinate term computation." (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125.)
The resentencing on April 3, 2019 did increase the term on the concurrent count from 16 months to 32 months. The court did so because it originally failed to double the 16-month term as required by the strikes law, notwithstanding that appellant had admitted a strike and that the court had explicitly denied his motion under People v. Superior Court (Romero) 13 Cal.4th 497, 529-530. The 16-month concurrent term imposed on December 14, 2018 was an unauthorized sentence that could be corrected at any time. (People v. Morales (2003) 106 Cal.App.4th 445, 454-455.) The trial court did not violate section 1170, subdivision (d) by increasing the concurrent term. (See People v. Torres (2008) 163 Cal.App.4th 1420, 1432 [citing case law that allows greater sentence when original sentence was legally unauthorized].)
B. The Abstract of Judgment Must Be Corrected
The abstract of judgment from the resentencing on April 3, 2019 reflects a total sentence of five years four months (64 months), consisting of a term of two years and eight months (32 months) for the commercial burglary in case 1917, a consecutive term of one year four months (16 months) for the identity theft in case 1917, and a consecutive term of one year four months (16 months) for the commercial burglary in case 0589. No mention is made of case 1349, and it appears that the commercial burglary in case 1917, rather than being treated as a count concurrent to case 0589 and case 1349, is being treated as the principal count. As we note above, this is incorrect. The People agree the abstract must be amended to reflect the actual sentence imposed: four years eight months (56 months).
III. DISPOSITION
The judgment (aggregate sentence of four years eight months) is affirmed. The trial court is ordered to prepare an amended abstract of judgment with the following corrections : (1) It shall reflect that the principal term is the two-year lower term for assault by means of force likely to cause great bodily injury under section 245, subdivision (a)(4) in case number 17NF001349, with sentence on the section 12022.7 enhancement stricken; (2) It shall reflect a 32-month lower term, concurrent, for commercial burglary under section 460, subdivision (b) in case number 17NF011917 (the 16-month lower term doubled pursuant to the strikes law); (3) It shall reflect a consecutive term of 16 months (one-third the middle term, doubled pursuant to the strikes law) for identity theft under section 530.5, subdivision (a) in case 17NF011917; (4) It shall reflect a consecutive term of 16 months (one-third the middle term, doubled pursuant to the strikes law) for commercial burglary under section 460, subdivision (b) in case 18NF0000589; and (5) credits for each case number shall be noted accordingly in section 16 of the abstract. The amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.