Opinion
C043480.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. LAVELLE STURGIS BROWN, Defendant and Appellant.
Pursuant to a negotiated plea, defendant Lavelle Sturgis Brown was convicted of sexual intercourse with a minor not capable of consent because of a developmental disability (Pen. Code, § 261, subd. (a)(1)) and annoying or molesting a child (§ 647.6, subd. (a)). He admitted prior convictions for burglary (§ 459) and annoying or molesting a child.
All further statutory references are to the Penal Code.
Sentenced to 14 years eight months in state prison, defendant appeals. He claims the abstract of judgment contains two material errors. The Attorney General concedes these inaccuracies, and we will order the corrections.
BACKGROUND
By information, the district attorney charged defendant with unlawful sexual intercourse with C.T., a minor incapable of giving legal consent because of a mental disorder and developmental disability. In a second count, defendant was charged with sodomy on C.T., a person under the age of 18. (§ 286, subd. (b)(1).) The final count alleged defendant committed incest with C.T. (§ 285.) The information also alleged prior convictions: robbery (§ 211) in 1979 and burglary (§ 459) in 1982, both of which were alleged to be serious felonies within the provisions of the "three strikes" law (§§ 667, subds. (b)-(i), 1170.12).
On January 7, 2003, the parties, with the approval of the court, entered a negotiated plea, the terms of which are recited at page 49 of the reporters transcript. Under the plea, defendant agreed to admit to the 1982 felony as a strike and to a prior misdemeanor conviction for annoying or molesting a child. He would plead guilty to the first count, unlawful intercourse, for a sentence of six years, doubled because of the prior strike to 12 years. The second count would be amended to allege annoying or molesting a child in violation of section 647.6, subdivision (a), a conviction that would be elevated to a felony because of the prior section 647.6 conviction. The stipulated sentence for that count was 16 months, doubled because of the strike to 32 months. The district attorney would dismiss the remaining strike allegation, for a total stipulated prison term of 14 years eight months.
On January 24, 2003, the court sentenced defendant to the prison term specified in the negotiated plea. It also imposed fines and issued other orders consistent with defendants status as a sex offender. Defendant then filed this appeal.
The trial court denied defendants application for a certificate of probable cause. (§ 1237.5.) However, since this appeal raises only errors in the sentence as recorded in the abstract of judgment, it is properly before us. (Cal. Rules of Court, rule 31(d) [post-plea appeal may be taken without a certificate as to matters "occurring after entry of the plea which do not challenge its validity"].)
DISCUSSION
Defendant requests the correction of two errors in the abstract of judgment. The Attorney General concedes both errors.
First, the abstract shows defendants conviction on count two as sodomy with a minor under the age of 16 (§ 286, subd. (b)(1)), the charge alleged in the information. However, the reporters transcript as well as the clerks minutes show this count was orally amended to charge a violation of section 647.6, subdivision (a) (annoying or molesting a child), elevated to felony status because of an admitted prior conviction of the same offense.
In a criminal case, the judgment is the sentence orally pronounced by the court. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3; §§ 1202, 1191.) When the record is in conflict, the part of the record that is entitled to greater credence will prevail. (See People v. Smith (1983) 33 Cal.3d 596, 599.) Here, the transcript of the sentencing hearing and the clerks minutes more accurately reflect the courts sentence than does the abstract of judgment.
The second inaccuracy in the abstract is its recitation of defendants admitted prior felonies as enhancements, "charged and found to be true for prior conviction or prison terms," indicating that the term for each was stayed.
The two prior convictions were not enhancements since they did not result in any additional prison time added to the base term. (Cal. Rules of Court, rule 4.405(c).) Instead, the burglary conviction was admitted as a strike in order to impose a second strike (double-the-base term) sentence, while the prior molestation conviction was used to elevate the current conviction for the same offense to a felony. Accordingly, the "Enhancement" box should have been left blank, and box 4 should have been checked, indicating that defendant was sentenced under the three strikes law. (§ 667, subs. (b)-(i).)
Defendant also suggests that under item 11, "Other orders" should be corrected to reflect that the conviction for section 647.6, subdivision (a) was elevated to a felony because of a prior conviction defendant suffered in 2001 for the same offense. The Attorney General does not object, and we deem such modification appropriate.
Although not mentioned by the parties, we also observe that the prison terms listed in the abstract for each count are inaccurate. The abstract lists the prison term for count one as eight years eight months and indicates an unspecified additional eight-month sentence "Per Stipulation addl time." This is wrong.
The term on count one should be listed as 12 years. The term on count two (which should be amended to show a violation of § 647.6, subd. (a)) should be two years eight months rather than six years. There should be no other entries for additional prison time. The total time will remain the same, 14 years eight months.
DISPOSITION
The abstract of judgment is modified in the following manner: In box 1, the conviction on count one shall be corrected to reflect a prison term of 12 years. The conviction on count two shall be corrected to show a conviction for violation of section 647.6, subdivision (a), annoying or molesting a child, with a prison term of two years eight months. The third entry, showing eight months of "stipulated" additional time, shall be removed.
All entries in box 3 shall be removed. Box 4 shall be checked.
Under item 11, "Other orders," the following entry shall be inserted: "Count two sentenced as a felony because of defendants admission of prior Penal Code section 647.6, subdivision (a) conviction in 2001."
As modified, the judgment is affirmed. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections.
We concur: SIMS, Acting P.J. DAVIS, J.