Opinion
E052129
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. URSULO COOK, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Ursulo Cook pled guilty to sexual penetration by means of force, violence, duress, menace, or fear (Pen. Code, § 289, former subd. (a)(1), now
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF135372)
OPINION
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ursulo Cook pled guilty to sexual penetration by means of force, violence, duress, menace, or fear (Pen. Code, § 289, former subd. (a)(1), now subd. (a)(1)(A)) and was sentenced to the low term of three years in state prison. He contends the trial court abused its discretion by denying him probation. We affirm with directions to correct a clerical error.
BACKGROUND
On October 28, 2006, defendant took the victim "to a parking lot and inserted [his] finger into her vaginal area by force or fear or duress or menace, for the purpose of sexual arousal, gratification or abuse."
Defendant was charged under Penal Code section 289, former subdivision (a)(1), with the additional allegation that the victim was particularly vulnerable within the meaning of California Rules of Court, rule 4.421(a)(3).
On August 24, 2009, the day jury selection began, defendant requested an indicated sentence should he plead guilty to the trial court. The trial court indicated it would, as a maximum, impose the low term of three years in state prison, or it would grant probation with up to one year in county jail. Defendant stated he wanted probation. The trial court stated it could not "be in a position at this point to give any sort of guarantee of probation," recited some of the potential additional information it would consider, and stated it would "certainly be open to the consideration of probation." Defendant inquired as to community service or a weekend program; the trial court stated it did not want defendant to "wind up with weekends or community service." Defendant then elected to proceed to trial.
Defendant changed his mind and pled guilty the next day. His plea form specified he would plead guilty to "PC 289(a)(1)" and the term would be the low term of three years. Thus, the plea was to the trial court's indicated sentence, and not an agreement with the prosecution.
The probation officer's report states: "Pursuant to the provisions of Penal Code Section 1203.065(a), a grant of probation is prohibited for any reason, in that the defendant stands convicted of violating Penal Code Section 289(a)." The report also states that defendant had obtained a low score on a sexual offense recidivism indicator; his risk of reoffending within 10 years is 13 percent.
The probation officer's report states defendant's monthly income is $2,750, but he also has $45,000 in credit card debt. The probation officer's recommendation included the imposition of a $200 fine pursuant to Penal Code section 290.3, but noted that the fine may be waived if the trial court found defendant did not have the ability to pay the fine. The probation officer also recommended setting the restitution and parole revocation restitution fines (Pen. Code, §§ 1202.4 & 1202.45) at $1,000.
At sentencing, the trial court permitted comments from counsel, defendant, the victim, the victim's sister, defendant's girlfriend, and again by defendant. The People's comments included the statement, "probation in this type of case would be an injustice," and noted disagreement with the indicated sentence, but asserted that defendant deserved to go to prison. The trial court then stated it had read and considered the probation officer's report and had found a factual basis for defendant's plea. It then pronounced judgment: "[Defendant], you have no prior record, and you certainly by all accounts have led a life that most people who come to court, with support, do not have. And you apparently spent time in the United States Air Force. You attended college, received a degree, served as a deputy sheriff . . . for a period of time; and then the probation report also indicates that you served in the National Guard, Army Reserves, and then went on to teach both at Cal State Fullerton, and then obtained a master's degree in Azusa Pacific, and then have engaged yourself [in] other teaching—at other institutions.
"You should know better, sir. You just should know better. Your past does not help you somewhat . . . other than the fact that you don't have prior convictions or enhancements, but to live the life that you lived up until now and to engage in the conduct that has been charged against you, means you should know better. And even now, you're refusing to take responsibility. You pled guilty. You've admitted the charge, and you tell me in your last responses that the victim should recant. It's a complete lack of acceptance of responsibility on your part—whether you're in a high or low in risk for recidivism, I think you would be a high risk given the fact that you refused to accept responsibility for the acts that are charged against you. Why this young girl would make up a story? Apparently, this young girl looked up to you. She was a student, and whether she called you a number of times, she's looking for guidance from a teacher, and you used that position of trust to commit an atrocious, horrible crime against her. One which hopefully through counseling [she] will be able to overcome; but in any event, it is the Court's decision in reviewing the factors in weighing a support or denial of probation. . . . Probation will be denied."
The trial court then imposed its indicated low term sentence of three years because of defendant's lack of prior criminal history, prior gainful employment, educational achievements, and military service. The trial court indicated it was inclined to set the restitution fines at $1,000 as recommended by the probation officer. Defendant's trial counsel responded, "We've heard this morning that [defendant] has lost gainful employment. Certainly, he is not going to be gainfully employed for the next couple of years; so I would request that the minimum restitution fine be imposed." While not reducing the fines to their $200 minimums, the trial court did reduce them to $400. The trial court did not orally pronounce a Penal Code section 290.3 fine; however, the sentencing minute order includes a $200 Penal Code section 290.3 fine.
DENYING PROBATION
As noted by the probation officer, but apparently overlooked by the trial court, Penal Code section 1203.065 prohibits the granting of probation, notwithstanding any other provision of law, for someone like defendant, who has been convicted of a violation of Penal Code section 289, subdivision (a).
Defendant contends the trial court abused its discretion by denying probation. He acknowledges the prohibition on granting probation but contends probation was contemplated by the parties so the trial court could have adjusted defendant's conviction to Penal Code section 289, subdivision (h). He explicitly stands by his plea and is not requesting that he be permitted to withdraw his plea.
There was no agreement between the parties; defendant pled guilty to the trial court's indicated sentence. Thus, defendant's plea was entered based on the trial court's indication that it would impose no more than the low term, and would consider probation with jail time, depending on what set of facts were confirmed prior to sentencing. (People v. Labora (2010) 190 Cal.App.4th 907, 915 [Fourth Dist., Div. Two].) Accordingly, defendant's plea was entered without "any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge . . . or to . . . sentencing." (Pen. Code, § 1192.7, subd. (b).) Thus, there was no agreement that could serve as the basis for the trial court adjusting the offense of which defendant was convicted in order to make probation a possibility. Nonetheless, the trial court actually did consider the possibility of probation.
Plea bargaining was prohibited due to the Penal Code section 289, subdivision (a) charge. (Pen. Code, § 1192.7, subd. (a)(2).)
However, because a trial court necessarily cannot abuse its discretion by denying something it had no discretion to grant, there was no abuse of discretion in the trial court denying probation.
FINE
The parties agree that a Penal Code section 290.3 sex offense fine was not orally pronounced by the trial court, but was erroneously included in the sentencing minutes and abstract of judgment. Because this fine includes an ability to pay provision, it is not mandatory. (See Pen. Code, § 290.3.) "Where 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.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (Id. at pp. 387-388.) Because we have the inherent power to correct clerical errors to make records reflect the true facts (People v. Mitchell (2001) 26 Cal.4th 181, 185), we will order the correction of the sentencing minute order and abstract of judgment.
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment and sentencing minute order to remove the imposition of a Penal Code section 290.3 fine. The clerk is then ordered to forward certified copies of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.