Opinion
H047640
08-06-2020
THE PEOPLE, Plaintiff and Respondent, v. BLAS CHRISTOPHER MARQUEZ, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 18CR02054)
I. INTRODUCTION
Defendant Blas Christopher Marquez, Jr., appeals from the trial court's order terminating probation and executing a three year eight month prison sentence. The sentence included one year for a Penal Code section 667.5, subdivision (b) prior prison term sentence enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that he is entitled to the retroactive application of Senate Bill No. 136 (Stats. 2019, ch. 590) (S.B. 136), which took effect while defendant's appeal was pending and amended the prior prison term sentence enhancement by limiting its application to prison terms that, unlike defendant's, were served for "sexually violent offense[s] as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code" (§ 667.5, subd. (b)).
Our review of the record reveals a conflict between the reporter's transcript, which states that defendant admitted a prior strike allegation (§ 667, subds. (b)-(i)), and the clerk's minutes, which indicate that defendant admitted a prior prison term allegation (§ 667.5, subd. (b)).
For reasons that we will explain, we conclude that defendant admitted a prior strike allegation rather than a prior prison term allegation. Thus, S.B. 136 does not apply. We further determine that the trial court imposed an unauthorized sentence when it ordered defendant to serve one year in prison pursuant to section 667.5, subdivision (b). We therefore remand the matter for resentencing
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation department's presentence report.
On December 18, 2017, Beatriz Herrera noticed that her purse was missing from her preschool classroom. Herrera initially believed she had misplaced her purse, but when she checked her banking activity online, she discovered several fraudulent charges on her credit cards.
Herrera recalled seeing a parent, Renee Lew, walk toward Herrera's classroom before her purse went missing. Other teachers at the school told Herrera that they saw defendant, the father of Lew's child, on the school campus that day, too.
Herrera went to some of the stores where her credit cards were used. Employees at one of the stores allowed Herrera to view surveillance footage capturing the fraudulent transaction. Herrera recognized Lew in the surveillance footage. The Santa Cruz Police Department obtained additional surveillance footage showing Lew and defendant making several of the fraudulent transactions.
B. Procedural History
Defendant was charged by information with three counts of identity theft (§ 530.5, subd. (a); counts 1-3). The information also alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)), specifying that the terms were served in case Nos. F16840, F20203, and F28068, and had been convicted of a strike offense (§ 667, subds. (b)-(i)) in 2008 in case No. F16840.
Defendant initialed and signed a plea and waiver of rights form (plea form) indicating that he wanted to plead guilty or no contest to two counts of identity theft and admit the "strike prior" allegation. The plea form specified that the prior strike conviction occurred in case No. F16840 and that defendant faced a "total maximum time" in this case of seven years four months. (Capitalization omitted.) The plea form stated that this was an "open plea." (Capitalization omitted.) The plea form did not indicate that defendant was probation ineligible.
At the plea hearing, defendant's counsel stated that defendant had "filled out a plea and waiver form for Counts 1 and 2, both felony identity theft charges, and he is also admitting to his strike prior from 2008." Defense counsel requested a probation report. The parties indicated their agreement that defendant be released to "Encompass Services, Si Se Puede" pending sentencing.
As relevant here, during the trial court's voir dire of defendant, the trial court asked defendant whether he "underst[oo]d what the disposition [was] in this matter as stated by the District Attorney [sic]" and whether he had an opportunity to discuss the case fully with his counsel. Defendant answered both questions affirmatively. The following exchange then occurred:
"THE COURT: And the maximum exposure that is put on here is three years eight months with a strike?
It is unclear what the trial court was referencing when it asked, "And the maximum exposure that is put on here is three years eight months with a strike?" (Italics added.) As we detailed above, the plea form indicated that the maximum time defendant faced if he pleaded guilty or no contest to two counts of identity theft and admitted the prior strike allegation was seven years four months.
"[THE PROSECUTION]: No. That actually -- seven years four months.
"THE COURT: I was going to say, that seems a little -- and do you understand that's the maximum sentence . . . with [the] charges that you would be pleading to and admitting the strike prior, that that's the maximum you could be sentenced [to], do you understand that, seven years and four months?
"THE DEFENDANT: Yeah, I do."
In response to further questioning by the court, defendant stated that his attorney had answered all of his questions and that he had read through and understood the information contained on the plea form.
After defendant pleaded no contest to two counts of identity theft, the trial court asked, "In the 2008 strike prior, in case F16840, do you admit that strike prior?" Defendant responded, "Yes, I do." The prosecution stated that it "would be moving to dismiss [count 3] as well as the prison prior special allegation[s] at the time of sentencing." The trial court "released [defendant] to a representative of either the Probation Department or the Encompass services for intake into their program."
The clerk's minutes from the plea hearing state that defendant pleaded no contest to counts 1 and 2 and admitted the prior prison term. The minutes make no mention of the prior strike allegation.
The presentence report by the probation department listed defendant's "Offense" as, "Ct. 1) PC 530.5(a), felony; Ct. 2) PC 530.5(a), felony; special allegation per PC 667.5(b)." The report also stated, "According to [defense counsel], he and [the prosecution] agreed on a sentence of 16 months in prison as a paper commitment. According to [the prosecution], this was an open plea with no offer or agreement regarding custody time."
At sentencing, the parties indicated that defendant had absconded from the Si Se Puede program. The prosecution requested the trial court "to sentence defendant to 4 years 8 months, which is the maximum." The trial court responded, "He has a prior strike but what he pled to was a prison prior." The prosecution stated, "That's correct."
Defense counsel argued that if defendant were sent to prison, it would "set[] [defendant] up to do the same things in the future." The court inquired, "I can't put him on probation because of his record, right?" Defense counsel responded that the court could place defendant on probation. The court stated that defendant "has a prior strike" and asked, "It wasn't admitted in this case?" Defense counsel responded that defendant had not admitted the prior strike allegation. The prosecution added, "So he technically is eligible for probation." The prosecution expressed that its "request right now, is that [defendant] be sentenced to probation, suspended sentence 4 [years] 8 [months]." The prosecution asked the court to impose the upper term on count 1, one-third of the midterm on count 2, and "one year for the prison prior."
The trial court placed defendant on probation, ordering him to complete a long-term residential treatment program, and suspended the execution of a 3 year 8 month prison sentence, comprised of the two-year midterm on count 1, one-third of the midterm on count 2, and one year for a prior prison term enhancement. The clerk's minutes state that the court dismissed count 3, struck two prior prison term allegations, and struck the prior strike allegation.
Defendant did not appeal from the trial court's order granting probation and suspending the execution of sentence. Three months after sentencing, defendant admitted that he violated the terms of his probation.
At sentencing on defendant's probation violation, defense counsel asked the trial court to allow defendant to enroll in another program. The prosecution requested that "the suspended prison sentence of three years/eight months be imposed [sic]." The trial court ordered the three year eight month prison sentence executed.
III. DISCUSSION
Defendant contends that S.B. 136 applies retroactively to him and "requests that this court remand the matter to the trial court with instructions to strike and dismiss the one-year sentence under section 667.5, subdivision (b)." The Attorney General counters that S.B. 136 does not apply retroactively to defendant because the judgment against defendant was final before S.B. 136 took effect.
We alerted counsel that based on our review of the record, it appeared that defendant admitted a prior strike allegation, not a prior prison term allegation, and asked if the trial court had imposed an unauthorized sentence.
In supplemental briefing, defendant contends that apart from the plea form and the reporter's transcript of the plea hearing, "the balance of the record shows that [he] admitted not a prior strike but rather a prior prison term," and therefore the trial court did not impose an unauthorized sentence when it imposed one year for a prior prison term enhancement. Alternatively, defendant argues that if this court concludes that he did not admit a prior prison term allegation, this court "should . . . strike the one-year sentence and leave the remaining two years and eight months." The Attorney General asserts that "the most accurate reading of the record is that [defendant] admitted a prior strike allegation, not a prior prison term" and thus "the trial court's imposition of a one-year sentence for th[e] prior prison term was unauthorized." The Attorney General contends that "the case should be remanded for resentencing based on the crimes and enhancements [defendant] actually admitted."
" '[A]s a general rule . . . when . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case." (People v. Smith (1983) 33 Cal.3d 596, 599 (Smith).)
The conflict here, between the reporter's transcript of the plea hearing that states that defendant admitted a prior strike allegation and the clerk's minutes that indicate that defendant admitted a prior prison term allegation, cannot be harmonized. Thus, we must determine based on the circumstances of the case which record " 'is entitled to greater credence.' " (See Smith, supra, 33 Cal.3d at p. 599.)
The only item in the record generated on the date of defendant's plea that indicates that defendant admitted a prior prison term allegation, rather than a prior strike allegation, is the clerk's minute order. In contrast, both the plea form and the reporter's transcript state defendant's intention to admit the prior strike allegation, with defense counsel representing at the plea hearing that defendant had "filled out a plea and waiver form for Counts 1 and 2, both felony identity theft charges, and he is also admitting to his strike prior from 2008." The plea form and the reporter's transcript also specify the case number of defendant's prior strike conviction, and both state that defendant was facing a maximum sentence of seven years four months in this case. Based on defendant's pleas to two counts of identity theft in violation of section 530.5, subdivision (a), a maximum sentence of seven years four months was only possible if defendant admitted the prior strike allegation. Had defendant pleaded no contest to two counts of identity theft and admitted a prior prison term allegation, the maximum sentence would have been four years eight months. (§§ 530.5, subdivision (a), 667.5, subdivision (b).) In addition, defendant's initials appear on the plea form next to the statement evincing his intention to admit the prior strike allegation and the form bears defendant's and defense counsel's signatures.
The reporter's transcript of the plea hearing states that the trial court asked defendant whether he understood that "the maximum sentence . . . with [the] charges that [he] would be pleading to and admitting the strike prior [was] seven years and four months," and the transcript indicates that defendant responded he understood. No objection appears in the transcript to this exchange. The transcript recites that the court asked defendant, "In the 2008 strike prior, in case F16840, do you admit that strike prior?" According to the transcript, defendant responded, "Yes, I do." The year and case number that appear in the transcript match the year and case number alleged in the prior strike allegation in the information. The transcripts also states that the prosecution represented that it "would be moving to dismiss . . . the prison prior special allegation[s] at the time of sentencing."
Citing the clerk's minutes from the sentencing hearing, the abstract of judgment, and the presentence report by the probation department, defendant urges us to consider "the balance of the record" when determining whether the reporter's transcript or the clerk's minutes control. However, the sentencing minutes and the abstract of judgment document what occurred at the sentencing hearing, not at the plea, and the probation officer's seeming reliance on the clerk's minutes from the plea hearing, rather than the reporter's transcript of the plea hearing, does not somehow demonstrate that the clerk's minutes are more accurate than the reporter's transcript.
Given the level of detail in the reporter's transcript, its consistency with the plea form bearing defendant's initials and signature, and its consistency with the information, we determine that the reporter's transcript of the plea hearing " 'is entitled to greater credence' " than the clerk's minutes. (Smith, supra, 33 Cal.3d at p. 599.) We therefore conclude that defendant admitted the prior strike allegation, not a prior prison term, and that S.B. 136, which pertains solely to prior prison terms, does not apply in this case.
Because the record demonstrates that defendant admitted the prior strike allegation rather than a prior prison term allegation, the trial court imposed an unauthorized sentence when it ordered defendant to serve one year in prison for a prior prison term enhancement. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) "An appellate court may [order an unauthorized sentence to be corrected] 'whenever the error comes to the attention of the court.' " (In re Harris (1993) 5 Cal.4th 813, 842.)
Defendant argues that this court "should not remand the matter for the trial court to sentence [him] on the strike, because the strike has already been stricken," but provides no authority for this assertion. There is no constitutional or statutory prohibition against the reinstatement of a strike allegation, properly admitted by a defendant pursuant to the terms of a plea agreement, that was erroneously stricken by the trial court as part of its imposition of an unauthorized sentence. An unauthorized sentence " 'is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.' " (People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3; see also People v. Serrato (1973) 9 Cal.3d 753, 764-765, overruled on another ground by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
We note that although the clerk's minutes state that the trial court struck the prior strike allegation when it imposed sentence, the reporter's transcript does not include an order by the court to that effect. Nor did either party move the court to strike the prior strike allegation. --------
For these reasons, we determine that defendant is not entitled to the retroactive application of S.B. 136 and remand the matter for resentencing.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.