Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. Nos. SC147932A & SC155309A
Banke, J.
Defendant Albert Dean Long entered pleas of guilty in two cases. The first case (No. SC147932A) arose from the theft of property from the Full Circle Family Institute (Full Circle) in May and June of 2006 (the Full Circle case). The second case (No. SC155309A) arose from burglaries of several businesses on Mitchell Boulevard in San Rafael in August 2007 (the Mitchell case). In a consolidated sentencing proceeding, the trial court imposed an aggregate sentence of 17 years four months imprisonment.
Defendant’s counsel has filed a brief pursuant to People v. Wende, in which no issues are raised, and asks this court to conduct an independent review of the record to identify any arguable issues. Counsel declares she notified defendant he could file a supplemental brief raising any issues he wished to call to the court’s attention. Defendant has since filed a supplemental brief.
People v. Wende (1979) 25 Cal.3d 436; see also People v. Kelly (2006) 40 Cal.4th 106.
Upon independent review of the record and consideration of defendant’s supplemental brief, we conclude no arguable issues are presented for review. However, we order the judgment modified to correct a sentencing error, and we direct the trial court to correct portions of the abstract of judgment that do not accurately reflect the sentence orally pronounced by the court. These corrections do not affect the aggregate sentence imposed by the court.
The court notified the parties by letter of the modifications we intended to order, and invited the parties to file letter briefs stating any objections. Defendant’s counsel filed a letter disagreeing in part with some of the proposed modifications, and we address that letter in part II below. The Attorney General did not file a response.
I. Factual and Procedural Background
A. Case No. SC147932A
Defendant performed maintenance and yard work for Full Circle and also assisted Full Circle in selling some vans. Although Full Circle had not agreed to compensate defendant for his work in connection with selling the vans, defendant was upset when he received no compensation.
On June 5, 2006, law enforcement officers conducted a parole search of defendant’s residence after receiving information he was in possession of computer equipment that had been stolen from Full Circle. Officers found three computer keyboards and two monitors in defendant’s bedroom.
Police interviewed defendant, and he admitted taking the keyboards and monitors, as well as computer towers, from Full Circle. Defendant also admitted stealing ladders, paint and a bicycle from Full Circle. Police recovered the computer towers from defendant’s van, and recovered the ladders and paint from defendant’s girlfriend’s residence. In a storage shed at defendant’s girlfriend’s residence, police also found a chain saw, a Bosch saw, and computer software, all of which belonged to Full Circle.
Defendant was charged by information with two counts of grand theft (Pen. Code, § 487, subd. (a)) (counts 1-2), and three counts of receiving stolen property (§ 496, subd. (a)) (counts 3-5). The information alleged a 1985 arson conviction as a prior strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), prior felony convictions under section 1203, subdivision (e)(4), and prior prison terms under section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
On June 26, 2007, defendant, while represented by counsel and after executing a written waiver of rights, entered guilty pleas to all counts and admitted the special allegations. There was no agreed upon disposition. After accepting defendant’s plea, the trial court granted his motion to dismiss the prior strike allegation, concluding the three strikes law was not intended to cover someone in defendant’s situation. Sentencing was continued, and defendant remained out of custody.
B. Case No. SC155309A
On Monday and Tuesday, August 27 and 28, 2007, San Rafael Police Department officers were dispatched to several businesses in a business park on Mitchell Boulevard in San Rafael. The businesses had been burglarized, and various items taken, including cash, a Dell laptop computer, an XM satellite radio docking station, a DLP projector, a digital camera, a Comcast flashlight set, two thumb drives and two desktop tripods for a camera.
An employee of one of the businesses found his employer’s stolen laptop listed on Craigslist, and performed a “reverse IP search” that identified defendant as the person who had made the posting on Craigslist. Subsequently, an employee of Northgate Properties, the property manager for the business complex, told police he had rented defendant a storage unit in the complex. He also told police defendant had been in the property management office several times and had seen where keys were kept for businesses in the complex. Northgate Properties was not able to identify whether any keys were missing.
On August 28, 2007, police conducted a parole search of defendant’s residence. Before beginning the search, police told defendant they believed he had a digital projector and laptop computer that had been stolen in recent burglaries at the business park. Defendant said he had sold the items earlier that day. During the search, officers found various items that had been stolen from the business park, including pen and pencil sets, a camera tripod, a box of about 10 computer flash drives or memory sticks, a Comcast flashlight set, a digital camera, an iPod, and an XM docking station. Defendant told the officers additional stolen items were in a storage locker at 55 Mitchell Boulevard. Police searched the storage locker and found other stolen items, including Dell laptop computers, a projector, and a box of approximately 30 keys, some of which had numbered tags on them. The keys were marked and tagged in the same manner as other keys police had seen in the property management office of the Mitchell Boulevard business complex.
An amended information in the Mitchell case charged defendant with seven counts of commercial burglary (§ 459) (counts 1-7) and one count of receiving stolen property (§ 496, subd. (a)) (count 9). The amended information alleged defendant committed the charged crimes while he was released on bail in connection with the Full Circle case, and thus was subject to a sentence enhancement under section 12022.1, subdivision (b). The amended information in the Mitchell case alleged the 1985 arson conviction as a strike under the three strikes law, as well as alleging prior felony convictions under section 1203, subdivision (e)(4), and prior prison terms under section 667.5, subdivision (b).
The amended information included a residential burglary charge (count 8), which the court later dismissed on the prosecution’s motion.
On February 19, 2009, while represented by counsel and after executing a written waiver of rights, defendant entered guilty pleas to counts 1-7 and 9. Defendant admitted the special allegation that he committed the offenses while he was released on bail. Defendant also admitted the prior strike allegation, and the prior felony convictions alleged under section 1203, subdivision (e)(4).
Prior to defendant’s entry of his guilty pleas, the trial court stated it would sentence defendant to a maximum of 16 years in the Mitchell case (case No. SC155309A), to run consecutively with a maximum sentence of 16 months in the Full Circle case (case No. SC147932A), for a maximum aggregate sentence of 17 years four months. The court promised to strike, in both cases, the prior prison term allegations under section 667.5, subdivision (b). Defendant retained the right to file a motion, under section 1385 and People v. Superior Court (Romero)(1996) 13 Cal.4th 497, to dismiss his prior strike conviction as to the Mitchell case. Defendant also retained the right to ask the court to strike the two-year “out on bail” enhancement under section 12022.1, subdivision (b). Finally, defendant was free to argue for concurrent sentencing, and to argue for the lower or middle terms.
C. Sentencing
At a consolidated sentencing hearing on June 17, 2009, the court denied defendant’s motion to dismiss his prior strike (the 1985 arson conviction) as to the Mitchell case. The court acknowledged the age of the strike and defendant’s lack of history of assaultive crimes, but noted his extensive and “unabated” history of felony convictions since 1983, including burglaries and thefts. Because of defendant’s criminal history, the court concluded defendant was not outside the purview of the three strikes law.
The court stated that, even if probation were an option (which it was not because of the strike), it would not exercise its discretion to grant probation under section 1203, subdivision (e)(4). After discussing the factors set forth in California Rules of Court, rules 4.421 and 4.423, the court determined the upper term of imprisonment was appropriate.
The court ruled the sentences for receiving stolen property in both cases (counts 3-5 in case No. SC147932A, and count 9 in case No. SC155309A) would be stayed under section 654.
The court then ruled the sentences for the two cases would run consecutively, because the crimes were committed over one year apart and in different locations. The court ruled the sentence in the Mitchell case (No. SC155309A), and specifically, count 1 in that case, would be the principal term, and the sentence in the Full Circle case (No. SC147932A) would be the subordinate term. As to the individual burglary counts in the Mitchell case, the court noted that, although the burglaries occurred within one business complex, they involved separate victims; accordingly, the sentences on those counts would run consecutively.
Finally, in accordance with the terms of defendant’s plea, the court struck the allegations of prior prison terms under section 667.5, subdivision (b). The court declined, however, to strike the two-year out-on-bail enhancement applicable under section 12022.1, subdivision (b).
After making these rulings, the court imposed sentence as follows: On count 1 in case No. SC155309A, the court imposed the upper term of three years, doubled to six years because of the prior strike. On each of the remaining burglary charges in that case (counts 2-7), the court ruled the aggravated term was appropriate, but imposed consecutive terms of eight months (one-third the middle term, see § 1170.1, subd. (a)), doubled to 16 months because of the strike. As to count 9, the receiving stolen property charge, the court ruled the circumstances warranted the aggravated term, and stated “the aggravated term is imposed but stayed pursuant to [section] 654.” The court then stated: “The two year enhancement pursuant to [section] 12022.1 of the Penal Code is imposed.” The court thus imposed an aggregate term of 16 years imprisonment for the Mitchell case.
In the Full Circle case (No. SC147932A), as to each of the theft charges (counts 1 and 2), the court imposed consecutive terms of eight months imprisonment (one-third the middle term). As to the receiving stolen property charges (counts 3-5), the court stated “the aggravated term is imposed but stayed pursuant to [section] 654.” The court thus imposed an aggregate term of 16 months imprisonment for the Full Circle case.
The aggregate term of imprisonment for both cases was 17 years four months.
The court imposed a restitution fine of $5,000 in each case, and a parole revocation restitution fine of $5,000 in each case, which was suspended unless parole was revoked. The court gave defendant credit for a total of 987 days in the Mitchell case (No. SC155309A), and 55 days in the Full Circle case (No. SC147932A).
Following the consolidated sentencing hearing, separate minute orders, signed by the court, were filed in each case; each minute order reflects the portion of the aggregate sentence applicable to that case. An abstract of judgment was filed, reflecting the aggregate sentence for both cases.
Defendant timely appealed in both cases. He did not seek or obtain a certificate of probable cause in either case.
II. Discussion
By entering pleas of guilty, defendant admitted the sufficiency of the evidence establishing the crimes, and is not entitled to review of any issue that goes to the question of guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his pleas. Therefore, the only issues cognizable on appeal are issues relating to the denial of a motion to suppress or issues relating to matters arising after the pleas were entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
Defendant was competently represented by counsel at all times. The sentence the court imposed was in accordance with the terms of the plea, and the restitution fines also were in accordance with applicable statutes. (See §§ 1202.4, 1202.45.) The court considered, and cited on the record, appropriate and relevant factors in making its sentencing decisions, including its selection of the upper term and its imposition of consecutive sentences.
In his supplemental brief, defendant contends the court erred by denying the motion to dismiss defendant’s prior strike as to the Mitchell case (No. SC155309A). Defendant notes he committed his strike offense 25 years ago, and since that time most of his crimes have been nonviolent property crimes. Defendant also argues he has struggled with mental health problems and drug use. However, the court carefully considered these and other factors in making its discretionary decision not to dismiss defendant’s strike. Specifically, the court acknowledged the age of the strike and defendant’s lack of history of assaultive or sexual crimes. The court noted defendant apparently has an impulse to commit thefts he “cannot apparently control appropriately”; further, in the context of deciding which term of imprisonment to impose, the court noted defendant’s substance abuse and mental health issues. However, because of defendant’s extensive history of felony convictions beginning in 1983, the court concluded defendant was “one of those examples, though they’re rare, that an old strike is important, ” and found defendant was not outside the purview of the three strikes law. The court’s conclusion was not an abuse of discretion. (See Romero, supra, 13 Cal.4th at pp. 530-532 [decision whether to dismiss a prior strike is reviewed for abuse of discretion].)
Defendant also argues briefly that the court, in denying the Romero motion, considered a prior case in which defendant had not been convicted; defendant also claims the court did not discuss any other cases. Defendant is incorrect. The court discussed a number of defendant’s prior convictions in ruling on the Romero motion. (As part of its summary of defendant’s criminal history, the court also referred briefly to one case that had been dismissed with a Harvey waiver as part of a negotiated disposition in another case.) The record does not show the court improperly considered any prior cases involving defendant in making its discretionary decision to deny the Romero motion. Defendant’s supplemental brief raises no arguable issues requiring further briefing.
People v. Harvey (1979) 25 Cal.3d 754.
After reviewing the record, we have identified one sentencing error. As to count 9 in the Mitchell case (No. SC155309A), the court orally imposed the aggravated term (three years), and stayed the sentence under section 654. Because the court did not dismiss defendant’s prior strike as to that case, the court should have doubled the sentence for count 9 (as it did for all other counts in that case) and then stayed the sentence under section 654. (See §§ 667, subd. (e)(1) [prior strike requires doubling of prison term]; 1170.12, subd. (c)(1) [same]; see also People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 [where prison term for current offense was subject to doubling and was also subject to stay under section 654, court should have imposed the term, doubled it, and stayed it].) A failure to double terms when required by the three strikes law is a jurisdictional error that can be raised for the first time on appeal. (People v. Morales, supra, 106 Cal.App.4th at pp. 454-455.) This court may correct an unauthorized sentence. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Cantrell, supra, 175 Cal.App.4th at p. 1165.) We will therefore direct the trial court to amend the abstract of judgment to reflect this modification to the sentence on count 9.
The minutes and the abstract of judgment erroneously reflect imposition of a consecutive 12-month term for count 9. In addition, the abstract erroneously reflects imposition of a consecutive sentence of one-third the middle term on count 9 (although the abstract also states that the court imposed the aggravated term). When there is a discrepancy between the oral pronouncement of judgment and the minutes or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
In a multiple count case, a trial court may dismiss a prior strike in connection with some counts but not others. (People v. Garcia (1999) 20 Cal.4th 490, 496-503; People v. Morales (2003) 106 Cal.App.4th 445, 456-457.) However, the trial court here did not do so; instead, the trial court declined to dismiss the strike as to the Mitchell case (No. SC155309A) generally, and made no exception for count 9.
In addition, there are discrepancies between the court’s oral pronouncement of judgment on the one hand, and the minutes and the abstract of judgment on the other. First, as to the Mitchell case (No. SC155309A), the court orally imposed a single two-year enhancement under section 12022.1, subdivision (b) that was not tied to a particular count of conviction in that case. However, the minutes and the abstract of judgment state the court imposed a one-year enhancement under section 12022.1, subdivision (b), which was associated specifically with count 9.
After specifying the sentences for all counts in case No. SC155309A, ending with count 9, the court stated: “The two year enhancement pursuant to [section] 12022.1 of the Penal Code is imposed.”
The sentence orally pronounced by the trial court was correct. The enhancement authorized by section 12022.1, subdivision (b) is a two-year enhancement. (§ 12022.1, subd. (b).) Further, enhancements under section 12022.1, subdivision (b) “ ‘have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.’ [Citation.]” (People v. Nguyen (1988) 204 Cal.App.3d 181, 195-196, disagreed with on other grounds in People v. Miles (1996) 43 Cal.App.4th 364, 370, fn. 6 & People v. Berry (1993) 17 Cal.App.4th 332, 339.)
In her letter addressing our intended modifications to the abstract of judgment, defense counsel asserts that, according to the reporter’s transcript, the trial court did tie the section 12022.1, subdivision (b) enhancement to count 9, and that the abstract is thus correct in that regard. We disagree. As noted above, the trial court specified the sentences for all counts in the Mitchell case (No. SC155309A), ending with count 9, and then stated it was imposing the section 12022.1, subdivision (b) enhancement. The court thus imposed the enhancement immediately after announcing the sentence for count 9 (which happened to be the last count of conviction in that case), but the court did not state the enhancement was associated specifically with count 9. Moreover, as also noted above, an enhancement under section 12022.1, subdivision (b) cannot be tied to an individual count; the enhancement is related to the offender (rather than to a particular offense) and is thus added only once in computing the aggregate sentence. (People v. Nguyen, supra, 204 Cal.App.3d at pp. 195-196.) Accordingly, even if the court’s statements were ambiguous as to whether the enhancement was imposed generally or was tied specifically to count 9, we would construe the court’s ruling as imposing an appropriate sentence, i.e., as imposing a single enhancement under section 12022.1, subdivision (b) that was not tied to a particular count of conviction.
In a related argument, defendant’s counsel asserts in her letter that the trial court should have stricken the section 12022.1, subdivision (b) enhancement to the extent it related to the other counts of conviction in the Mitchell case (No. SC155309A), i.e., counts 1-7. Defendant’s counsel contends “[t]he striking of this enhancement was clearly part of the plea bargain and this [c]ourt should order this enhancement stricken and order that the abstract reflect[] this correction.” We note initially that defendant’s counsel did not raise this argument previously, instead filing a Wende brief raising no issues. Moreover, in her letter, defendant’s counsel provides no record citation supporting her claim that an agreement to strike the section 12022.1, subdivision (b) enhancement was a term of defendant’s plea. In any event, this new argument is meritless.
The written guilty plea executed by defendant and his trial counsel in the Mitchell case reflects the court’s agreement to strike, in both cases, the prior prison term allegations under section 667.5, subdivision (b). In contrast, as to the section 12022.1, subdivision (b) enhancement, the plea states only that defendant “may... request that the court strike [the] ‘OR’ enhancement”; the document does not reflect an agreement that the court would strike that enhancement. (Italics added.) Moreover, the reporter’s transcript of the change of plea hearing shows the court made that point explicitly. The court stated it would strike the prior prison term allegations in both cases, and stated defendant could file a Romero motion to dismiss the allegation of a prior strike conviction and “could request that the court strike the out on bail, or out on O.R. enhancement, which adds two years.” (Italics added.) The court then emphasized: “I’m not making any promises about striking those latter things [i.e., the prior strike and the O.R. enhancement]. I have promised that I would strike the prior prison term allegations.” (Italics added.) Defendant affirmed he understood what the court had said; he also agreed no promises had been made to him other than those stated in open court and set forth in the change of plea form. The court thus did not violate the terms of the plea when it later declined to strike the section 12022.1, subdivision (b) enhancement. Defendant’s counsel’s letter raises no arguable issues requiring further briefing.
The minutes of the change of plea hearing also reflect that defendant retained only the right to “request” that the court strike the section 12022.1, subdivision (b) enhancement.
The second discrepancy between the court’s oral pronouncement of judgment on the one hand, and the minutes and the abstract of judgment on the other, relates to counts 3-5 in the Full Circle case (No. SC147932A). On those counts, the court orally imposed the aggravated term, stayed under section 654. The minutes and the abstract of judgment erroneously state the court imposed consecutive sentences of eight months (one-third the midterm), stayed under section 654.
Again, the sentence orally pronounced by the trial court was correct. “The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654.” (People v. Cantrell, supra, 175 Cal.App.4th at p. 1164; accord, Cal. Rules of Court, rule 4.424 [court must determine applicability of section 654 before determining whether to impose concurrent or consecutive sentences].)
Finally, the abstract of judgment states the date of conviction in the Mitchell case (No. SC155309A) was February 18, 2009; defendant entered his guilty plea in that case on February 19, 2009.
In addition, as to both cases, the court orally struck the enhancement allegations under section 667.5, subdivision (b). The minutes erroneously state the court struck allegations under section 1203, subdivision (e)(4).
Appellate courts have authority to correct an abstract of judgment that does not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell, supra, 26 Cal.4th at pp. 185-186.) We will direct the trial court to correct the above discrepancies in the abstract of judgment.
Our independent review of the record reveals no other meritorious issues that require further briefing on appeal.
III. Disposition
The judgment is modified to impose on count 9 in the Mitchell case (No. SC155309A) the aggravated term (three years), doubled (to six years), stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting this modification. The amended abstract of judgment shall also reflect: (1) as to the Mitchell case (No. SC155309A), a single two-year enhancement under section 12022.1, subdivision (b) that is not tied to a particular count of conviction in that case; (2) as to counts 3-5 in the Full Circle case (No. SC147932A), aggravated terms, stayed under section 654; and (3) as to the Mitchell case (No. SC155309A), a date of conviction of February 19, 2009. The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.