Opinion
B296635
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. LESLIE MOSLEY, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Peggy Z. Huang, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA465492) APPEAL from an order of the Superior Court of Los Angeles County. Mildred Escobedo, Judge. Affirmed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
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In July 2018, defendant and appellant Leslie Mosley was charged with one count of the unlawful sale, transport or import of cocaine base (Health & Saf. Code, § 11352, subd. (a); count 2), one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 3), and one count of possession of a controlled substance in a custodial facility (Pen. Code, § 4573.6, subd. (a); count 4). The information did not contain a count 1. It was further alleged defendant had multiple prison priors (Pen. Code, § 667.5, subd. (b)) and had suffered one prior qualifying strike conviction within the meaning of the "Three Strikes" law.
In November 2018, at a hearing at which defendant was represented by privately retained counsel, defendant agreed to withdraw his not guilty plea to count 2 and plead no contest in exchange for a low term sentence of three years and a dismissal of the remaining counts and allegations. The court accepted defendant's waiver of his rights on the record and found his plea to be knowingly, voluntarily and intelligently entered. Counsel stipulated to a factual basis for the plea.
As an additional term, defendant admitted his strike prior solely for the purpose of Penal Code section 1170, subdivision (h)(3), requiring him to serve his sentence in state prison and not local custody. The strike was not admitted for any other purpose. The court stated it would exercise its discretion to dismiss the strike for any other sentencing purpose.
The sentencing hearing was put over to allow defendant time to get his affairs in order.
At the sentencing hearing, in accordance with the terms of the plea agreement, defendant was sentenced to a low term of three years in state prison and awarded 68 days of presentence custody credits.
During the hearing, the court mistakenly stated that the dismissal of counts 3 and 4 had been ordered at the hearing in November at which the plea agreement was accepted on the record. The oral pronouncement of sentence therefore does not include a dismissal of counts 3 and 4 or the dismissal of the prior conviction allegations. However, the minute order correctly memorializes that counts 3 and 4 and the remaining allegations were dismissed pursuant to Penal Code section 1385 in accordance with the terms of the plea agreement. The abstract of judgment also correctly records the sentence as a three-year low term on count 2, with no reference to any other counts or enhancements
Defendant requests a remand to the trial court so that the agreed-upon dismissals may be properly ordered. Alternatively, he requests that this court acknowledge the dismissal in our written opinion.
We conclude a remand is unnecessary and a waste of judicial resources. Ordinarily the oral pronouncement of judgment controls. (See, e.g., People v. Thompson (2009) 180 Cal.App.4th 974, 978.) However, it is unequivocally clear from the record that the trial court intended to dismiss the remaining counts and prior conviction allegations in accordance with the terms of the plea agreement.
The sentencing minute order and abstract of judgment correctly reflect the intention of the court and the understanding of the parties as to the scope of the plea agreement. Therefore, "we will deem the minute order and abstract of judgment to prevail over the reporter's transcript." (People v. Cleveland (2004) 32 Cal.4th 704, 768; accord, People v. Smith (1983) 33 Cal.3d 596, 599.) Any erroneous statement in the reporter's transcript to the contrary is of no effect.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.