Opinion
E082319
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MENDEZ, JR., Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, and Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1702960. John D. Molloy, Judge.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, and Joshua Trinh, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
Defendant and appellant Victor Mendez, Jr., appeals following a recall hearing wherein the trial court addressed a clerical error in the abstract of judgment. Defendant contends the clerk's minute order of the hearing must be corrected to reflect the court's oral pronouncement. The People agree, as do we. Accordingly, we direct the clerk of the superior court to amend the September 18, 2023, minute order consistent with the trial court's oral pronouncement.
II. PROCEDURAL BACKGROUND
In November 2018, a first amended information was filed charging defendant with carjacking (Pen. Code, § 215, subd. (a); count 1) and kidnapping during commission of carjacking (§ 209.5; count 2). The information also alleged that defendant had sustained one prior prison term (§ 667, subd. (b)) for a 2004 robbery conviction, one prior serious felony conviction (§ 667.5, subd. (a)) for the 2004 robbery, and one prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) for the same 2004 robbery. The jury found defendant guilty of all counts as charged in the first amended information. In a bifurcated proceeding, defendant admitted the three prior conviction enhancements.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant was sentenced on April 5, 2019. At that time, the trial court exercised its discretion and dismissed count 1, and sentenced defendant to a total term of 19 years to life as follows: seven years to life for count 2, which was doubled to 14 years due to the prior strike, plus a consecutive five years for the prior serious felony enhancement pursuant to section 667, subdivision (a). The court struck defendant's prior prison term (§ 667.5, subd. (b)) enhancement.
The abstract of judgment was filed on April 9, 2019. The abstract of judgment incorrectly notes that defendant was sentenced to five years for a section "667.5(B)" enhancement.
On March 15, 2021, we affirmed defendant's judgment in case No. E072487. (See People v. Mendez (Mar. 15, 2021), E072487 [nonpub. opn.].)
In 2023, presumably the California Department of Corrections and Rehabilitation (CDCR) pursuant to section 1172.75 and Senate Bill No. 483 identified defendant as a person currently serving a term for a judgment that includes an enhancement for a prior prison term not imposed for a sexually violent offense and provided that information to the superior court. (See § 1172.75, subds. (a), (b).) It then became the court's duty to review the judgment and verify that the current judgment includes a sentencing enhancement for a prison prior not imposed for a sexually violent offense. (Id., subd. (c).)
The record does not include CDCR's communication to the trial court.
On September 18, 2023, the trial court held a recall/resentencing hearing pursuant to sections 1172.7 and 1172.75 and addressed the error in the April 2019 abstract of judgment. The court noted the abstract of judgment reflected that defendant's enhancement was a "667.5(b) prior," but he was in fact sentenced on a "667(a) prior" and not on the "667.5(b) prior." The court reviewed the record and stated, "[the previous judge] just said, 'As to Prior No. 1, five years. As to Prior No. 2, it is stricken,' as it should have been. Because both the prison prior and the nickel prior recited the same crime. And you can only have one. And it appears clear to me that the judge selected the nickel prior." Both the prosecutor and defense counsel agreed with the court's analysis of the record. The court then explained, "I went and checked. I looked at the Complaint, the Information. There was only -- the prior got a lot of play. It was alleged as a nickel prior, it was alleged as a prison prior, and it was alleged as a strike prior. But there was only one. It was the prior 211. [¶] All right. Under these circumstances, I am going to order an amended abstract of judgment reflecting that the prior is a 667(a) prior, not a 667(b) prior. The defendant is not entitled to relief under SB-483."
The clerk's minute order of the September 18, 2023 recall/resentencing hearing designated defendant's section 667.5, subdivision (b) prior prison term enhancement as "Prior 01" and his section 667, subdivision (a) prior serious felony enhancement as "Prior 02." The minute order reflects, "Court finds that the defendant was sentenced as Prior 2 not Prior 1. [¶] Sentence previously imposed is vacated as to Prior 01. [¶] Court orders stricken/dismissal set aside as to Prior 02. As to the prior 02, the Court imposes 5 years. [¶] Prior 02 to run consecutive to sentence imposed in Count 02. [¶] .... Riverside Clerk's Office is ordered to prepare an amended abstract pursuant to PC 1172.7 (a)/1172.75 (a)." Defendant timely appealed.
III. DISCUSSION
Defendant requests that we direct the superior court clerk to amend the September 18, 2023, minute order to correct the clerical errors as it misrepresents the trial court's oral pronouncement. Specifically, defendant claims that the minute order incorrectly reflects that the trial court vacated his prior prison term enhancement and imposed five years for his prior serious felony enhancement whereas the court only ordered the abstract of judgment to be amended to reflect the five-year enhancement was based on section 667, subdivision (a) rather than subdivision (b) of section 667.5. The People agree.
We also agree and direct the superior court clerk to amend the September 18, 2023 minute order to reflect the trial court's oral pronouncement. The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389.) "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, supra, at p. 385; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.) Here, as explained above, at the recall/resentencing hearing, the trial court ordered only for the abstract of judgment to be amended. The minute order, however, incorrectly vacated and imposed sentences where it only needed to amend the abstract of judgment. Accordingly, we order the clerk of the superior court to correct the September 18, 2023, minute order so that it is consistent with the trial court's oral pronouncement. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
IV. DISPOSITION
The clerk of the superior court is ordered to correct the September 18, 2023, minute order to reflect the trial court's oral pronouncement that the court only ordered the abstract of judgment amended and to delete references that the court imposed a sentence or ordered any priors vacated or set aside. As corrected, the order is affirmed.
We concur: MILLER Acting P. J., MENETREZ J.