Opinion
A154473
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. MARKUS CARL GRAHAM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR948745)
A jury found Markus Carl Graham guilty of transporting and possessing methamphetamine for sale, reckless driving, and related offenses. Pursuant to its authority under Penal Code section 1170, subds. (h)(5)(A)-(B), the trial court imposed a "split sentence," consisting of a county jail term followed by a period of mandatory supervision. (See People v. Catalan (2014) 228 Cal.App.4th 173, 178.) Graham challenges aspects of his sentence, including several supervision conditions purportedly ordered by the court. We conclude the trial court should have stayed the sentence for one count and remand for resentencing. In all other respects, we affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
A.
On November 4, 2017, Clearlake Police Officer Nixon observed Graham driving unsafely on a dirt road. Nixon activated his patrol car lights. Instead of stopping, Graham made a hard turn onto another road, skidded to a stop, exited the truck, and ran into a house, ignoring Nixon's orders to stop. Graham soon emerged from the house and was arrested. Nixon then searched Graham and found $510 and a cell phone. In the house, officers found a man's sock containing a Ziploc style sandwich bag stuffed with 133 grams of methamphetamine, which Graham acknowledged was his.
B.
A jury found Graham guilty of felony possession of methamphetamine for sale (Health & Saf. Code, § 11378; count one) with a special allegation that he possessed more than 57 grams of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)); felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count two); misdemeanor reckless driving (Veh. Code § 23103, subd. (a); count three); and misdemeanor delaying arrest (Pen. Code, § 148, subd. (a)(1); count four).
The probation report indicated Graham was presumptively ineligible for probation as a result of the special allegation finding (§ 1203.073, subd. (b)(2)) and recommended Graham serve the upper term (four years) on count two. The probation officer recommended Graham serve a split sentence of three years, six months in county jail, with the remaining six months on mandatory supervision (§§ 19.9, 1170, subds. (h)(5)(A)-(B)) subject to 17 recommended conditions. Finally, the probation officer recommended a concurrent sentence on count one because "[t]he crimes and their objectives were not predominantly independent of one another," and the "crimes were committed so closely in time and place as to indicate a single period of aberrant behavior."
At sentencing, the trial court imposed a four-year split sentence on count two (transportation), comprised of three years in county jail and the last year on mandatory supervision. The trial court found Graham's "objectives were not independent of one another" and his violations occurred at the same time, "indicating a single period of aberrant behavior," but imposed all the terms — including a three-year term on count one (possession) — to run concurrently.
The trial court did not address any of the recommended supervision conditions at the hearing. Yet an unsigned minute order indicates the court imposed all 17 of the conditions recommended in the probation report.
DISCUSSION
A.
We agree with Graham that the court should have stayed the three-year concurrent term for possession of methamphetamine for sale (count one). (§ 654.) "Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358.) Multiple punishment includes concurrent sentences for more than one conviction punishing the same act. (Id. at p. 353.) The court found that Graham committed the criminal acts at issue — transportation and possession for sale of methamphetamine — at the same time and with the same objectives. We agree. The court therefore should have stayed the sentence on count one. (People v. Tinker (2013) 212 Cal.App.4th 1502, 1506 [court erred by imposing concurrent term for possession and sale of methamphetamine despite finding they arose from the same facts and circumstances]; see also, People v. Buchanan (2016) 248 Cal.App.4th 603, 612-13 [§ 654 applied to possession and sale of methamphetamine]; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583 [possession and transportation].)
B.
Graham also argues that several of the supervision conditions are unreasonable and unconstitutional. In particular, Graham challenges an electronic search condition, a condition forbidding him from traveling outside the county without his probation officer's permission, and a condition requiring him to waive his right to a hearing before imposition of elevated sanctions. The People initially argue Graham forfeited these arguments by failing to object below. Graham insists there was no forfeiture because, by failing to describe these conditions as part of its intended sentence, the trial court did not give him a meaningful opportunity to object.
Generally, "complaints about the manner in which the trial court exercises its sentencing discretion . . . cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) This forfeiture rule only applies if the defendant was afforded a meaningful opportunity to object. (Ibid.) A meaningful opportunity requires the court to describe the sentence it intends to impose, give the reasons for the sentence, and consider "the objections of the parties before the actual sentencing." (People v. Boyce (2014) 59 Cal.4th 672, 731.)
We agree that Graham was not given a meaningful opportunity to object to the mandatory supervision conditions purportedly imposed. The court did not discuss or adopt conditions on the record during the sentencing hearing; the conditions appear only in an unsigned minute order issued after the hearing. Accordingly, Graham had no meaningful chance to object. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1223-1224 [no meaningful opportunity where court announced sentence and then declared a recess without giving counsel a chance to object]; see People v. Gonzalez (2003) 31 Cal.4th 745, 752 [approving Dorsey].)
It is nonetheless unnecessary for us to consider Graham's various objections to the supervision conditions stated in the unsigned minute order because none of these conditions are stated in the trial court's oral pronouncement of judgment, incorporated by reference therein, or included in any other formal order signed by the court. In a criminal case, the trial court renders judgment via oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Ibid.; § 1207.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) The oral pronouncement of judgment usually controls when there is a discrepancy. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The oral pronouncement rule has been held not to apply to probation conditions so long as the defendant knows what is required. (People v. Thrash (1978) 80 Cal.App.3d 898, 900-901 (Thrash) [probation conditions need not be orally pronounced if they are spelled out in a probation order signed by judge or judge incorporates them by reference at sentencing]; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1152, 1154-1155 (Frankie J.) [a probation condition need not be specifically orally recited by trial court if preprinted form is incorporated by reference by court and signed by probationer]; see § 1203, subd. (b)(3).)
Mandatory supervision bears many similarities to probation. (See § 1170, subd. (h)(5)(B) [supervision monitored by county probation officers "in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation"].) But "this does not mean placing a defendant on mandatory supervision is the equivalent of granting probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes into play only after probation has been denied." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422.) Accordingly, we hesitate to rely on the above authorities to conclude mandatory supervision conditions can be ordered outside of the defendant's presence.
In any event, if we assume the oral pronouncement of judgment rule does not apply to mandatory supervision conditions, Thrash and Frankie J. remain distinguishable. Here, unlike in those cases, the trial court did not incorporate the recommended supervision conditions by referencing them on the record at sentencing or by including them in a signed order. (Thrash, supra, 80 Cal.App.3d at pp. 900-901; Frankie J., supra, 198 Cal.App.3d at pp. 1154-1155.) Even probation conditions cannot be imposed solely by inclusion in an unsigned minute order. (See In re Robert H. (2002) 96 Cal.App.4th 1317, 1331.) In response to our request for supplemental briefing, the People now concede as much.
The record does not make the trial court's intent clear. We find it difficult to believe that the trial court deliberately intended to impose a twelve-month period of mandatory supervision subject to no conditions. Given the ambiguity as to what exactly the trial court intended, the parties now agree the appropriate remedy is to remand the matter to the trial court for clarification. It is premature for us to consider objections to any supervision conditions on this record. On remand, after the trial court announces the conditions it intends to impose, it may consider any objections.
DISPOSITION
The matter is remanded to the trial court for resentencing. In addition to clarifying its sentence with respect to mandatory supervision conditions, the trial court is directed to stay the term imposed on count one under section 654. In all other respects, the judgment is affirmed.
/s/_________
BURNS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.