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People v. Om

California Court of Appeals, Third District, San Joaquin
Apr 22, 2009
No. C057184 (Cal. Ct. App. Apr. 22, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SOPHEAR OM, Defendant and Appellant. C057184 California Court of Appeal, Third District, San Joaquin April 22, 2009

NOT TO BE PUBLISHED

Super. Ct. No. SF101047A

BUTZ, J.

A jury convicted defendant Sophear Om of several felonies and the trial court sentenced him to state prison for 73 years to life. On appeal, defendant’s principal claim is that the trial court should have granted his petition to release juror information in aid of his motion for a new trial. We reject this claim because the petition did not establish good cause. Defendant also raises certain sentencing issues, some of which are conceded by the Attorney General. We shall modify the sentence, order preparation of a new abstract of judgment, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Because of the limited issues raised on appeal, we provide an abbreviated statement of the facts of the crimes.

Defendant is a member of Tiny Rascal Gang (TRG), a Stockton street gang. Samnang Chheng, although not a known TRG member, despised the victim, S.T., as a “transformer,” a person who socialized with members of rival gangs. On July 19, 2006, defendant and Chheng approached S.T. and another man. After defendant made gang comments, defendant shot S.T. with a semiautomatic handgun, struck S.T. in the head with the gun, and then fired two more shots at S.T., inflicting serious injuries.

On September 6, 2006, at the preliminary hearing, defendant made gestures and comments in the courtroom and in the hallway that threatened the victim.

Based on the shooting incident, the jury convicted defendant of premeditated attempted murder (Pen. Code, § 664/187 count 1), assault with a semiautomatic firearm (§ 245, subd. (b) count 2), active gang participation (§ 186.22, subd. (a) count 3), and possession by a felon of a firearm (§ 12021, subd. (a)(1) count 4). The jury found that the shooting was done to benefit a gang and that defendant personally used, discharged and caused great bodily injury with a firearm. (§§ 186.22, subd. (b)(1) [counts 1 & 2], 12022.53, subd. (d) [count 1 only], & 12022.5, subd. (a) [count 2 only].) Based on the courthouse threats, the jury convicted defendant of dissuading a victim (§ 136.1, subd. (c)(1) count 5) and active gang participation (§ 186.22, subd. (a) count 6). Defendant admitted a prior strike alleged as to all counts. (§§ 667, subds. (b)-(i), 1170.12.) The trial court imposed a prison sentence, the details of which we explain in part II of the Discussion, and defendant timely appealed.

Undesignated statutory references are to the Penal Code.

DISCUSSION

I. Petition for Juror Information

Defendant contends the trial court should have granted his petition to release juror information to his trial counsel, to enable counsel to develop a motion for new trial based on juror misconduct. The facts surrounding defendant’s petition are somewhat convoluted, but it is necessary to describe them in some detail. Ultimately, we conclude that although the record shows jurors raised concerns about gang retaliation, and Juror No. 7 became a crime victim over the weekend during deliberations, the trial court acted within its discretion in concluding defendant did not show good cause for the trial court to release confidential juror information to further explore what exactly happened to Juror No. 7 and what, if anything, was discussed about that incident by the jurors.

A. Background

During jury selection, Juror Nos. 1 and 6 told the trial court they were concerned about defendant taking notes as the jurors revealed personal information. The trial court questioned them and both said they could be fair.

On Thursday, August 2, 2007, a gang expert testified at trial that TRG “is the largest Asian criminal street gang in the nation,” and has 65 “documented” members in Stockton. He described some violent crimes committed by TRG members, and identified defendant as a member of the gang.

During a break in the expert’s testimony, Juror No. 7 asked to speak with the trial court. Outside the presence of the other jurors, she told the trial court she felt “kind of weird about the gang thing. I don’t feel comfortable, you know, hearing more and more about it. I just I’m a single mom and I get worried about retaliation and so I just wanted to let you know that.” The trial court told Juror No. 7 that juror information was protected and would not be disclosed absent a formal motion, and that such motions were rarely granted. Juror No. 7 then described how frightened the victim seemed while testifying about the courthouse threats.

After discussing the matter with counsel, the trial court brought Juror No. 7 back into the courtroom and told her that juror names were redacted from the transcript. When the trial court asked her if she had formed fixed opinions, Juror No. 7 said she could be fair and listen to both sides, but gang retaliation “just kind of worries me, and I don’t know if I’m the only one that feels that way. I haven’t talked to anybody else about it.” After further questioning, and after again speaking with counsel in her absence, the trial court told Juror No. 7 that, after the evidence was in, the court would speak with her again to see if she could still keep an open mind during deliberations. She was told not to speak about her concerns with other jurors and she agreed not to.

The next day, Friday, August 3, 2007, before deliberations began, the trial court questioned Juror No. 7 in detail, and she said she could pay attention to the evidence and arguments and deliberate fairly. She said she felt better after speaking with the trial court the day before. The trial court denied a defense motion to discharge her.

According to the minutes and comments by the trial court, the jury deliberated for approximately an hour on that Friday. The verdict forms on counts 2 through 6 bear Friday’s date, “8 03 07.” On the following Monday, after approximately one more hour of deliberations, the jury reported it had reached its verdicts. The verdict forms pertaining to count 1 are dated that Monday. After the verdicts were read, the jury was polled and all the jurors assented to the verdicts.

Before sentencing, defendant filed a new trial motion which partly alleged that during deliberations, Juror No. 7 told the other jurors her house “had been ‘shot up’ over the weekend. [Juror No. 7] failed to inform the Court of this crime that had [been] committed against her.” Defendant also petitioned for access to juror information, alleging counsel needed to contact jurors to further develop the new trial motion.

In support of the new trial motion and the petition for access to juror information, defendant’s trial counsel filed her own declarations, but no juror declarations. Counsel’s declarations state that after the jury verdicts, Juror No. 7 “immediately walked up to Detective Slater, the investigating officer in this case, and to Detective Gutierrez, the gang expert, and asked to speak with them privately. Other jurors, including [Juror No. 11], told me that [Juror No. 7] had told the jurors that the house in which [Juror No. 7] lived had been ‘shot up’ over the past weekend. [¶]... The prosecutor informed me that the Detectives subsequently went to [Juror No. 7’s] house and determined that the incident was coincidental to this case and was not gang-related. A report was not written.”

In support of the People’s opposition, the prosecutor provided a declaration from Juror No. 1, which in part stated that “at no time did [Juror No. 7] disclose information concerning any events at her residence over the weekend of August 4-5, 2007[,] during deliberations.” “[A]ny information received by myself and the other jurors regarding any events at the residence of [Juror No. 7] over the weekend of August 4-5, 2007[,] was received after the jury deliberations were completed, the jury verdicts were signed, the jury had notified the court of the reaching of verdicts in the case and all jurors confirmed that the deliberations on the case before them were complete.”

The prosecutor asserted the incident involved vandalism, but no evidence supported that claim. There is no explanation why Juror No. 1’s declaration was elliptical about this.

At the hearing, defense counsel did not dispute Juror No. 1’s declaration, but argued that until the verdicts were read, they were not final, and jurors may have improperly adhered to a verdict that otherwise may have been disavowed. Defense counsel conceded jurors are not told to report if they have been victimized by crime, but argued they had a duty to report if they could not remain fair. The prosecutor argued Juror No. 7 had specifically told the court she could be fair and put aside her concerns about retaliation, and Juror No. 1’s declaration showed the discussion about the “event,” whatever it was, took place after all of the verdicts had been signed and, therefore, there was no prejudice.

The trial court denied defendant’s petition for release of juror information, stating “the failure to disclose being a crime victim is not misconduct” because the jurors had not been ordered to disclose such information. Further, “[i]t seems reasonably clear to the Court that had she thought anything that happened over the weekend was related to this case that she would have come forward in light of the fact that she had expressed concerns about retaliation before.” Finally, the alleged discussion took place after the verdicts were signed and did not affect them.

The trial court said it would prepare a written order stating these reasons “and some others.” After defendant’s opening brief on appeal was filed, the trial court issued a written ruling, contained in an augmented clerk’s transcript. Defendant moved to strike that transcript, alleging the ruling was made after ex parte communications between the prosecutor and the trial court. Because defendant does not claim the trial court’s failure to prepare an earlier statement of reasons was error (cf. Code Civ. Proc., § 237, subd. (b)), and because we resolve this appeal without reference to the document, the motion to strike is denied as moot.

B. Analysis

In People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes), this court discussed the competing policy interests regarding a trial attorney’s ability to access juror information, and developed the following test: “[U]pon timely motion, counsel for a convicted defendant is entitled to the list of jurors who served in the case, including addresses and telephone numbers, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial.... [¶] Absent a satisfactory, preliminary showing of possible juror misconduct, the strong public interests in the integrity of our jury system and a juror’s right to privacy outweigh the countervailing public interest served by disclosure of the juror information as a matter of right in each case.” (Id. at pp. 551-552.)

Although there have been subsequent statutory developments (see Stats. 1992, ch. 971, §§ 2-3, pp. 4597-4598 [adding Code Civ. Proc., § 237 & amending, id., § 206]), the passage of Rhodes quoted above states the appropriate test. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1093-1094; People v. Carrasco (2008) 163 Cal.App.4th 978, 990 (Carrasco) [“the Rhodes test survived the [statutory] amendments”].) The burden of establishing good cause lies with the movant, in this case defendant (People v. Granish (1996) 41 Cal.App.4th 1117, 1131), and we review the trial court’s ruling for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317 (Jones); Carrasco, supra, 163 Cal.App.4th at p. 991).

We conclude the trial court’s ruling denying the petition fell within the trial court’s discretion. Defense counsel failed to show she acted with diligence to contact jurors, and failed to show a reasonable basis to believe disclosing juror information would lead to admissible evidence of misconduct.

Appellate counsel asserts trial counsel did not know any juror names and was “unable to speak” with Juror No. 7 at the courthouse because Juror No. 7 was speaking with the police. Trial counsel’s declarations do not support either of these claims. Trial counsel declared that Juror No. 11 and unidentified “other” jurors spoke to her after the verdicts, but she did not explain what she did in response, such as asking for their contact information or if they would provide a declaration. In this connection, defendant inappropriately faults the prosecutor for obtaining and submitting Juror No. 1’s declaration. Defendant argues that it was unfair that the prosecutor was able to get a declaration from Juror No. 1, and asserts that defendant was deprived of “reciprocal discovery” rights. The record does not support the claim that the prosecutor had any greater access to information than defense counsel. “[C]ounsel and investigators routinely interview jurors before they leave the courthouse. Parties also have access to other means, like a public telephone directory.” (Rhodes, supra, 212 Cal.App.3d at p. 553.) We agree with the Attorney General that the fact a juror gave a declaration to the prosecutor does not show the prosecutor had unfair access to information. If anything, it demonstrates that juror declarations are commonly obtained without a petition for juror information. Because the record does not show what steps, if any, defense counsel took to contact jurors, the petition fails to show counsel acted with diligence. (See Jones, supra, 17 Cal.4th at p. 317.)

Nor did the petition show a reasonable basis to believe disclosure would result in admissible evidence of jury misconduct, as opposed to speculation.

Contrary to appellate counsel’s claim, the petition failed to provide, as a preliminary matter, any admissible evidence of misconduct. The trial court made two observations about evidence, and both were correct. Initially, after mentioning Evidence Code section 1150, the trial court referred to a prohibition on considering hearsay evidence. Because defense counsel failed to get any juror declarations, what evidence she tendered was hearsay, in her own words, what “[o]ther jurors, including [Juror No. 11], told me that [Juror No. 7] had told the jurors.” Counsel’s declarations were inadmissible hearsay. (People v. Cox (1991) 53 Cal.3d 618, 697-698, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Villagren (1980) 106 Cal.App.3d 720, 729; see CJER Bench Handbook: Jury Management (CJER 2008 rev.) Jury Deliberations, § 3.27, p. 95.) Later, after defense counsel stressed the need to contact jurors to determine if what Juror No. 7 said influenced them, the trial court stated, “[T]hat would not be admissible evidence in a new trial motion, whether or not it influenced that juror.” That, too, was a correct statement. (Evid. Code, § 1150, subd. (a); In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton) [“evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict”]; see People v. Steele (2002) 27 Cal.4th 1230, 1260-1264 (Steele) [rejecting federal state challenges to this evidentiary rule].)

Nor did the record provide a basis to believe any admissible evidence supporting a tenable claim of juror misconduct could be obtained by granting the petition. Assuming Juror No. 7’s house actually was “shot up” over the weekend and that she told the other jurors about it, her statement would not have been admissible for purposes of a new trial motion. By statute “any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a).) Thus, what Juror No. 7 said during deliberations would be admissible only if it was “of such a character as is likely to have influenced the verdict improperly.” (Ibid.; see People v. Hedgecock (1990) 51 Cal.3d 395, 419 [“In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible”].)

The trial court properly concluded that Juror No. 7’s statement would not “improperly” influence the verdicts.

First, the admissible information about whatever Juror No. 7 did say was provided by Juror No. 1’s declaration. This did not reveal what Juror No. 7 said, but clearly stated that whatever she said was said “after the jury deliberations were completed, the jury verdicts were signed, the jury had notified the court of the reaching of verdicts in the case and all jurors confirmed that the deliberations on the case before them were complete.” Although defendant faults the trial court for purportedly resolving a factual dispute in accepting Juror No. 1’s declaration, the trial court had no dispute to resolve: Juror No. 1’s declaration was not contested by any evidence, and defense counsel did not challenge that declaration at the hearing; she instead argued the timing of Juror No. 7’s statement was irrelevant. In the absence of any basis to believe Juror No. 7’s statement was made before the jurors “confirmed that the deliberations... were complete,” nothing she said could have “improperly” affected the verdict.

Jurors have life experiences, and discussing them during deliberations is not of itself misconduct. (Steele, supra, 27 Cal.4th at pp. 1259-1260, 1265-1267 [jurors who were veterans told others about their interpretations of military records; not misconduct]; Hamilton, supra, 20 Cal.4th at p. 296 [“‘virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote’”].) The fact Juror No. 7 had been a crime victim was not misconduct, and because jurors had not been instructed to report such incidents, her failure to do so was not misconduct. (See Hamilton, supra, 20 Cal.4th at pp. 304-305 [alleged fact that juror failed to report that she saw defendant’s agents lurking by her house during trial was not misconduct].)

Indeed, the trial court found that based on his questioning of her before deliberations, if Juror No. 7 had believed whatever happened would influence her, she would have known to report it. That was a reasonable finding. (See Hamilton, supra, 20 Cal.4th at p. 306 [“This state of the record weighs against any assumption that [a juror] found the incident sufficiently unsettling to affect her trial impartiality”].)

Thus, defendant’s theory of admissibility of the hoped-for evidence from other jurors was based on speculation about their reasons for convicting defendant, not based upon a tenable claim that external information improperly influenced the verdict.

Given counsel’s lack of diligence, the lack of preliminary evidence of jury misconduct, and the lack of a nonspeculative theory of jury misconduct, the trial court acted within its discretion in denying the petition to release juror information.

Defendant claims this court has held a “possible” or “potential” theory of misconduct was enough. In Rhodes, supra, 212 Cal.App.3d at page 552, we referred to “a reasonable belief that jury misconduct occurred,” then “a showing of probable juror misconduct,” and then a “satisfactory, preliminary showing of possible juror misconduct.” To conclude that we held any “possible” or “potential” claim would suffice would disregard the thrust of our opinion, which was to create a rule that “safeguards both juror privacy and the integrity of our jury process against unwarranted ‘fishing expeditions’ by parties hoping to uncover information to invalidate the jury's verdict.” (Ibid.)

II. Sentencing Claims

In order to address defendant’s sentencing claims, we must describe the sentence in detail.

Defendant admitted the allegation, appended to all counts, that he had a strike. (§§ 1170.12, subd. (b), 667, subd. (d).) The jury’s findings and ensuing sentence components were as follows:

Count 1: The jury found defendant committed attempted premeditated murder (§ 664/187), done to benefit a gang (§ 186.22, subd. (b)(1)), and by personally discharging a firearm, causing great bodily injury (§ 12022.53, subd. (d)). The trial court imposed a life term for attempted murder, found defendant must serve 15 years due to the gang finding, and doubled the 15 years due to the strike, “so the total on that is 30 years to life. [¶] In addition to that, the Court must impose the term prescribed by law on [section] 12022.53, which is 25 to life. [¶] So the total on Count 1 is 30 to life, plus 25 to life, for a total of 55 [years] to life.”

Enhancements can run consecutively to a life sentence. (See People v. Shabazz (2006) 38 Cal.4th 55, 70 & fn. 9 [25-year-to-life enhancement term under § 12022.53, subd. (d) was properly ordered to run consecutively to life without the possibility of parole term].)

Count 2: For assault with a semiautomatic firearm the court imposed the upper term of nine years, doubled to 18, but stayed execution of this term (§ 654), and imposed and stayed two 10-year enhancements (§§ 186.22, subd. (b)(1), 12022.5, subd. (a)).

Count 3: For the count of active gang participation tied to the attempted murder (§ 186.22, subd. (a)), the court imposed the midterm of two years, doubled to four for the strike, and ordered it to be served concurrently.

Count 4: For the felon-in-possession count (§ 12021, subd. (a)(1)), the court imposed the midterm of two years, doubled to four for the strike, and stayed execution (§ 654).

Count 5: For dissuading a witness in order to benefit a street gang (§§ 136.1, subd. (c)(1), 186.22, subd. (b)(4)(C)), the court imposed a consecutive indeterminate upper term of seven years to life, doubled to 14 years to life.

Count 6: For the count of active gang participation tied to dissuading a witness (§ 186.22, subd. (a)), the court imposed the midterm of two years, doubled to four for the strike.

The trial court called this a “total aggregate term of imprisonment [of] 73 years to life” and the determinate and indeterminate abstract of judgment forms bear the notation: “[Defendant] sentenced to a total of 73 years to life.”

A. Sentence on Count 6

Generally, when a consecutive sentence is imposed, one-third the midterm is imposed. (§ 1170.1, subd. (a).) An exception is provided by section 1170.15, which provides for full-term consecutive sentencing for specified crimes. In part, it applies to “a violation of Section 136.1,” and the trial court accordingly imposed a full-term consecutive sentence for count 5, dissuading a witness (§ 136.1, subd. (c)(1)). However, the trial court also imposed a full-term consecutive sentence for count 6, active gang participation (§ 186.22, subd. (a)).

Defendant contends, and the Attorney General concedes, that because the gang offense is not listed in section 1170.15, the trial court should have imposed a consecutive one-third the midterm sentence (doubled for the strike), namely, 16 months instead of four years on count 6. We accept the concession and modify the sentence on count 6 to 16 months.

B. Claimed Errors on Abstract

Defendant contends the determinate abstract of judgment contains errors of omission and the indeterminate abstract of judgment misstates the sentence for count 1. We accept defendant’s claims of errors by omission. We agree the indeterminate abstract does not accurately state the sentence for count 1, but not for the reason defendant posits.

We first observe as follows: “[T]he abstract is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence. It may serve as the order committing the defendant to prison (§ 1213), and is ‘“the process and authority for carrying the judgment and sentence into effect.” [Citations.]’ [Citation.] As such, ‘the Legislature intended [it] to [accurately] summarize the judgment.’” (People v. Delgado (2008) 43 Cal.4th 1059, 1070.)

1. Stayed enhancements.

The parties agree the determinate abstract under item 2 must reflect the stayed enhancements pertaining to count 2. The trial court should include this information on the amended abstract.

2. Minimum parole term.

The following three general rules are relevant to the sentence on count 1: Attempted premeditated murder is punishable “by imprisonment in the state prison for life with the possibility of parole.” (§ 664, subd. (a).) When a crime “punishable by imprisonment in the state prison for life” (§ 186.22, subd. (b)(5)) is committed to benefit a criminal street gang, the defendant “shall not be paroled until a minimum of 15 calendar years have been served” (ibid.). This provision “raises the seven-year minimum eligible parole date” otherwise provided for an ordinary life term. (People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14 (Montes); see § 3046.) When a felon has one strike, “the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e)(1); see People v. Smithson (2000) 79 Cal.App.4th 480, 503.)

The trial court imposed a life sentence on count 1, applied the 15-year parole ineligibility term, doubled it to 30 years due to the strike, imposed a consecutive 25-year-to-life sentence for the firearm enhancement, and characterized the resulting sentence on count 1 as “55 [years] to life.”

The indeterminate abstract at item 6 states the sentence on count 1 as “30 years to Life,” and separately shows at item 2 the firearm enhancement tied to count 1 resulted in a term of “25-LIFE.” In defendant’s view the abstract, as to count 1, apart from the enhancement, should say “life with the possibility of parole” as provided by section 664. We disagree.

Defendant quotes a portion of a California Supreme Court case, which in part observes that some statutes setting indeterminate terms do not provide a minimum term, citing as an example attempted premeditated murder. (People v. Jefferson (1999) 21 Cal.4th 86, 92-93.) But defendant fails to mention that the holding in Jefferson was that where, as in this case, an attempted premeditated murder is accompanied by gang findings and a strike finding, the 15-year parole ineligibility period for the gang finding is doubled due to the strike. (Id. at pp. 99-101.)

The subdivision discussed in Jefferson was renumbered and slightly reworded. (Compare § 186.22, former subd. (b)(4) with current subd. (b)(5); Historical and Statutory Notes, 47 West’s Ann. Pen. Code (2009 supp.) foll. § 186.22, pp. 169-170; see People v. Lopez (2005) 34 Cal.4th 1002, 1005-1006.)

Therefore, defendant has failed to show that the trial court made any error in doubling the parole ineligibility period to 30 years. Further, courts commonly refer to a life term with a minimum parole period as “___ years to life,” as the trial court did in this case. In fact, a leading treatise gives as an example an attempted premeditated murder with a strike and a gang finding, and refers to the ensuing sentence as “an indeterminate term of 30 years to life, [plus any determinate term].” (Couzens & Bigelow, California Three Strikes Sentencing (Barrister Press, 2d ed. 2008) p. 7.83, ex. 10.) Therefore, we do not fault the trial court, either at sentencing or in the abstract, for characterizing the sentence on count 1 as “55 [years] to life.” (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1228-1229 [describing a sentence derived by adding the 15-year parole ineligibility period to a 25-to-life firearm enhancement as “40 years to life”].)

But that common usage does not fully capture the meaning of the sentence, and other cases have ordered abstracts to note the “15-year minimum parole eligibility date on [a murder] count pursuant to section 186.22, subdivision (b)(5).” (People v. Johnson (2003) 109 Cal.App.4th 1230, 1239-1240; see People v. Ortiz (1997) 57 Cal.App.4th 480, 487 [abstract modified by “noting a 15-year minimum parole eligibility date”]; see also People v. Herrera (2001) 88 Cal.App.4th 1353, 1365 [modification to state “defendant is to serve a life term subject to the 15-year minimum term” in § 186.22, former subd. (b)(4) (now subd. (b)(5))], disagreed with by other courts on another point as described by Montes, supra, 31 Cal.4th at p. 361, fn. 14.) Such a notation is a better way of describing the sentence imposed. The indeterminate abstract should state the sentence on count 1 (apart from the firearm enhancement) is life, with a notation indicating defendant is not eligible for parole on count 1 for 30 years.

The indeterminate abstract also fails to indicate the jury’s gang finding pertaining to count 1, and that finding is critical to understanding defendant’s sentence on count 1. Item 8 on the indeterminate portion of the abstract states “Defendant was sentenced pursuant to” followed by a series of boxes, including one for strikes, which is checked. The last box in the series is marked “other (specify):” and it, too, could be checked, with a notation to specify “PC 186.22(b)(1) & (5)” as to both counts 1 and 5. With that notation, the basis of defendant’s sentence will be ascertainable from the abstract. Or, the trial court could type in a clarification to explain the math, so long as there is a reference to section 186.22, subdivision (b) and its import as to counts 1 and 5.

The abstract combines defendant’s determinate and indeterminate sentences into an omnibus “73 years to life.” Apart from the reduction on count 6, determinate and indeterminate sentences should not be combined. The determinate term must be served in full before the consecutive indeterminate terms. (§ 669; see 3 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Punishment, § 286, pp. 377-378.)

A clearer narrative description of the total sentence would be 16 months (the term both parties concede must be imposed on count 6), plus life (noting a 30-year parole eligibility date), plus 39 years to life (adding the 25-year-to-life term for the firearm enhancement appended to count 1 and the 14-year-to-life term for count 5). (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2008) Felony Sentencing, § 37:38, pp. 1141-1142 [giving similar example].)

The trial court must prepare new abstracts consistent with the agreed modification and the other points stated above.

DISPOSITION

The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation corrected abstracts in conformity with this opinion. In all other respects, the judgment as modified is affirmed.

We concur: SCOTLAND, P. J., HULL, J.


Summaries of

People v. Om

California Court of Appeals, Third District, San Joaquin
Apr 22, 2009
No. C057184 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Om

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SOPHEAR OM, Defendant and…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Apr 22, 2009

Citations

No. C057184 (Cal. Ct. App. Apr. 22, 2009)