Opinion
F072457
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO CARDENAS MORELOS, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F06906618)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
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INTRODUCTION
In 2007, appellant Santiago Cardenas Morelos was convicted of multiple counts of various offenses, including numerous counts of forgery and receiving stolen property. A prison term of 21 years 4 months was imposed. On November 21, 2014, Morelos filed a motion for resentencing pursuant to Proposition 47. On August 5, 2015, the superior court recalled the sentence and resentenced Morelos in accordance with Penal Code section 1170.18, reducing his total sentence to 12 years and awarding custody and conduct credits, which exceeded the sentence. Morelos appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm, but direct the preparation of a corrected abstract of judgment.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Morelos was previously before this court, resulting in our opinion People v. Morelos (2008) 168 Cal.App.4th 758. On November 3, 2005, sheriff's deputies executed a search warrant at a house in Reedley and seized sheets of blank checks, check printing software, sheets of currency, California driver's licenses, Social Security cards, credit cards, firearms, lists of other people's names, addresses, telephone numbers and dates of birth, and other documents. (Id. at p. 761.) On January 3, 2007, a jury found Morelos guilty of over 100 counts. (Ibid.) The trial court sentenced Morelos to an aggregate term of 21 years 4 months for the counts of which he was convicted. On appeal, this court struck 17 of the convictions and ordered resentencing. (Id. at p. 770.)
At resentencing, a term of 19 years 4 months in prison was imposed. After resentencing, Morelos stood convicted of multiple counts of violating sections 476 and 496, and violations of sections 470, 470b, and former section 12021, subdivision (a).
On November 21, 2014, Morelos filed a motion for resentencing pursuant to Proposition 47. The matter was set for a hearing, but on April 27, 2015, the superior court continued the matter to determine appointment of counsel. The matter was continued again on May 11, 2015, because Morelos requested the original sentencing judge hear his motion for resentencing.
On June 1, 2015, Morelos was not present; the superior court issued a transport order and ordered Morelos be transported and present for all hearings in the matter. On July 1, 2015, Morelos was present with counsel and the superior court set a briefing schedule.
Defense counsel's amended points and authorities in support of resentencing set forth the multiple counts of which Morelos was convicted, comprising 79 counts of forgery (§ 476), nine counts of receiving stolen property (§ 496, subd. (a)), seven counts of counterfeiting (§ 470, subd. (d)), one count of possession of blank checks for purposes of forgery (§ 475, subd. (b)), one count of possession of a forged driver's license (§ 470b), and one count of possession of a firearm by a felon. Morelos asserted that violations of sections 470, 475, 476, and 496 were eligible for resentencing if the dollar amount involved in each count was less than $950. The People apparently filed no opposition to the motion or brief.
The section 470b offense was not included in the request for resentencing as it is not the type of document included in section 473, subdivision (b). --------
At the July 30, 2015, hearing, the superior court issued a tentative ruling. The superior court articulated its ruling and proposed sentence. The revised proposed term of imprisonment was 11 years 4 months.
At the conclusion of the recitation of the tentative ruling, the People stated they would not be "filing any opposition" and "agree[d] with the Court's ruling." Defense counsel declined the opportunity to argue or comment on the tentative decision. The superior court put the matter over for sentencing in order to obtain updated time credit information from the probation office.
At the August 5, 2015, continued hearing, the superior court noted it had forgotten to include one count, count 130, in its calculations when issuing the tentative ruling. Including count 130, after application of sections 473 and 1170.18, the sentence would be a total of 12 years, with total credits of 5,343 days. No objection to the tentative sentence of 12 years or the award of credits was raised by Morelos or defense counsel; defense counsel did not wish to be heard regarding the corrected tentative sentence.
Hearing no objection or comments from defense counsel or Morelos, the superior court proceeded, ruling some offenses would remain felonies, reducing multiple counts to misdemeanors, imposing a term for multiple misdemeanors, and stating the sentence for other misdemeanors would be credit for time served. Credits of 3,563 actual days and 1,780 conduct days were awarded, for a total of 5,343 days of credit. The superior court also adjusted fines and fees.
The superior court noted the total days of credit amounted to "a little over 14 years" and "12 years is a time out." Consequently, the superior court directed Morelos be returned to the California Department of Corrections and Rehabilitation for the purpose of being processed for release. No objection was raised by Morelos or defense counsel to the sentence.
After reclassification of multiple counts to misdemeanors pursuant to sections 473 and 1170.18, the following was set forth in the superior court's minute order.
Counts 7, 9, 12, 81, 115, and 130 remain felonies, with count 7 as the principal term and the midterm of two years imposed for count 7. The terms for the other counts are one-third the midterm, to run consecutive to count 7. The total term on these counts equals five years four months.
Counts 13, 14, 16, 17, 18, 82, 83, 85, 116, and 117 remain felonies; the midterm of two years is imposed for each count, to run concurrent to count 7.
The following counts were reduced to misdemeanors, with a term of four months imposed for each count: 19, 24, 36, 47, 64, 70, 77, 87, 93, 97, 106, 107, 122, 129, 131, 132, 133, 134, 135, and 141. The total term for these counts equates to six years eight months, to run consecutive to count 7.
The following counts were reduced to misdemeanors, a term of 365 days was imposed, and Morelos was given credit for time served as to these counts: 10, 11, 15, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49, 51, 52, 65, 66, 67, 68, 69, 74, 80, 84, 88, 91, 92, 94, 95, 98, 99, 108, 109, 110, 111, 112, 113, 114, 118, 123, 124, 125, 126, 127, 136, 137, 138, 139, 140.
The minute order failed to list count 105, which the superior court stated orally was reduced to a misdemeanor.
The two-page abstract of judgment was filed August 14, 2015. The abstract states on page one that additional counts are listed in an eight-page attachment, however, no pages are attached to the two-page form. In addition, the abstract fails to list count 105 as among the counts reclassified to a misdemeanor, and fails to list counts 81, 85, 115, and 130, which remained felonies.
Morelos filed a notice of appeal on October 2, 2015.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on May 19, 2016. That same day, this court issued its letter inviting Morelos to submit supplemental briefing. No supplemental brief was filed.
On November 4, 2014, the voters of California enacted The Safe Neighborhoods and Schools Act (Prop. 47; § 1170.18), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 changed portions of the Penal Code to reduce certain theft-related offenses from felonies or wobblers to misdemeanors when the value of the stolen property does not exceed $950. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089-1091.)
The initiative also created a resentencing procedure, allowing offenders to petition for resentencing if they are currently "serving a sentence for a conviction" for committing a felony and "would have been guilty of a misdemeanor under" the provisions amended by Proposition 47. (§ 1170.18, subd. (a).)
As relevant to this case, section 473 states the punishment for acts of forgery; violations of sections 470, 475, and 476 are forgery. Proposition 47 amended section 473 and added subdivision (b), that is, a forgery offense relating to a check, bond, bank bill, note, cashier's check, or money order, where the value does not exceed $950, is a misdemeanor. (§§ 473, subd. (b), 1170.18, subd. (a).) Additionally, Proposition 47 provided that convictions for violating section 496, receiving stolen property, were eligible for resentencing as a misdemeanor if the amount did not exceed $950. (§§ 496, subd. (a), 1170.18, subd. (a).)
Here, the superior court carefully reviewed each conviction, determined whether the offense was eligible for resentencing pursuant to section 1170.18, and reduced those offenses eligible for reduction to misdemeanors.
As to count 115, at its oral pronouncement the trial court indicated this count would be reduced to a misdemeanor; however, the trial court then proceeded to impose a sentence of one-third the midterm, as in a felony sentence. Count 115 is a violation of section 470, subdivision (d), but involved an amount of $1,620 and, thus, is not eligible for resentencing as a misdemeanor. (§§ 473, subd. (b), 1170.18, subd. (a).) In stating count 115 would be a misdemeanor, the superior court clearly misspoke. A court has the inherent power to correct an erroneous oral pronouncement that is clearly contrary to the court's intent. (People v. Menius (1994) 25 Cal.App.4th 1290, 1294; People v. Jack (1989) 213 Cal.App.3d 913, 915-916.)
The superior court properly applied sections 473, 496, and 1170.18 in ruling on Morelos's motion for resentencing. The superior court's judgment, however, is not accurately set forth in the abstract of judgment.
Our review of the abstract of judgment discloses the abstract must be corrected. The abstract references eight pages that are not attached. The abstract also erroneously lists counts 10 and 11 as both felonies and misdemeanors; the superior court reduced these offenses to misdemeanors as the amounts involved in each offense are less than $950. The abstract fails to list counts 81, 85, 115, and 130, which remain felonies. The abstract fails to list count 105, which was reduced to a misdemeanor.
DISPOSITION
The judgment is affirmed. The superior court is directed to prepare and file a corrected abstract of judgment.