P. v. Kerr

Filed 8/18/09 P. v. Kerr CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant, Christina Iris Kerr, of petty theft with a prior (count 1/Pen. Code, 666)^[1]and second degree burglary (count 2/ 460, subd. (b)). In a separate proceeding, Kerr admitted two prior prison term enhancements ( 667.5, subd. (b)) and a prior conviction within the meaning of the three strikes law ( 667, subds. (b)-(i)).

On September 18, 2008, the court sentenced Kerr to a six-year term, the aggravated term of three years on count 2, doubled to six years because of Kerrs prior strike conviction, a stayed term on count 1, and concurrent one-year terms on each of Kerrs prior prison term enhancements.

On appeal, Kerr contends the trial court erred in imposing concurrent terms on her prior prison term enhancements and that this court should strike them. We agree that the court erred in imposing concurrent terms on Kerrs prior prison term enhancements but we will remand the matter to the trial court for resentencing. We will also find that Kerrs abstract of judgment and the clerks minutes of her sentencing hearing contain several mistakes. In all other respects, we will affirm.

FACTS

On January 2, 2008, Kerr entered a Rite Aid store in Kern County and placed $356.81 of medicine in her purse. Kerr left the store without paying for the medicine and was detained by a loss prevention officer.

On March 25, 2008, the district attorney issued an information charging Kerr with the two counts she was convicted of. Each count alleged the same four prior prison term enhancements and a prior conviction within the meaning of the three strikes law. Prior to the start of trial in this matter the court struck the same two prior prison term enhancements from each count. After the jury returned guilty verdicts on counts 1 and 2, Kerr admitted the two remaining prior prison term enhancements in each count.

On September 18, 2008, during the sentencing hearing the court, in pertinent part, stated,

And so with that, the Court, I am going to do as follows: I believe the upper term is justified. And I will follow the recommendation of the probation department on the sentencing: That is, on Count I, the petty theft with the prior strike, to stay that pursuant to Penal Code [section] 654.

On Count II, under Penal Code [s]ection 460, subdivision (b), probation is denied. You are sentenced to [the] Department of Corrections for [the] upper term of six years; that sentence is to be -- and that is as much as I am going to impose.

Two one-year priors under [section] 667.5, sub[division] (b), I am going to stay imposition of sentence -- actually, I believe I can run them concurrently, and if I dont do it correctly, [the] Department of Corrections will do it.

Probation is not here to guide me, but I am going to run them concurrently with the six years I have imposed; for [a] total [term] of six years.

[This] [g]ives you [a] slight benefit of two years; thats to acknowledge the efforts you have made of recent, which your attorney has brought forth to the attention of this Court, and I believe that the effort you are making recently as of the last few years is sincere, and its a concerted effort.

So I am going to give you two years break for that, but you have to understand that with the criminality that you have demonstrated there, that is as much of a break as I can give you.

DISCUSSION

Kerr contends that the courts intent not to impose the two prior prison term enhancements consecutive to her six-year term is evident from the courts sentencing comments. Thus, according to Kerr, this court should strike the prior prison term enhancements. Respondent concedes that the court erred in imposing concurrent terms on Kerrs prior prison term enhancements but argues that the appropriate remedy is to remand for resentencing so that the court can state reasons for dismissing the enhancements if it decides to dismiss them. We agree with respondent.

[I]mposition of an additional term under section 667.5 is mandatory unless the additional term is stricken. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) This additional term may not be imposed concurrently. (People v. Savedra (1993) 15 Cal.App.4th 738, 747.) Thus, we conclude the court erred when it imposed concurrent terms on Kerrs two prior prison term enhancements.

Moreover, section 1385, subdivision (a) provides: The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. (Italics added.)

The requirements of section 1385 are mandatory. (People v. Bonnetta (2009) 46 Cal.4th 143, 151.) In accord with Bonnetta, we will remand the matter to the trial court so that it may comply with section 1385, subdivision (a) if it decides to strike any of the prior prison term enhancements.

Kerrs Abstract of Judgment and the Clerks Minutes

Our review of the record disclosed several errors in Kerrs abstract of judgment and the clerks minutes of her sentencing hearing. Section 1 of Kerrs abstract of judgment shows that the court imposed the aggravated term of three years on count 2 and a stayed, aggravated term of 3 years on count 1. This was error because Kerr admitted a prior strike conviction and, as correctly noted in section 4 of Kerrs abstract of judgment, Kerr was sentenced pursuant to the three strikes law ( 667, subdivision (b)-(i) and 1170.12) as a defendant who had one prior strike conviction. Thus, the court should have indicated in section 1 of the abstract of judgment that it sentenced Kerr to the aggravated term of six years on count 2 and a stayed, aggravated term of 6 years on count 1, the aggravated term of three years on each count, doubled to 6 years because of Kerrs prior strike conviction.

Section 3 of the Kerrs abstract of judgment consists of a table for listing enhancements for prior convictions. The abstract memorializes Kerrs admission of a prior strike conviction with the language CT1 - PC 667(E) in the first cell of the column titled, ENHANCEMENT and the language, CT2 - PC 667(e) in the third cell of that column. In the next column, which is titled, TIME IMPOSED OR S FOR STAYED, the abstract has an S in the cell corresponding to count 1 (the first cell of that column) and 3Y in the cell corresponding to count 2 (the third cell of that column). However, the three strikes law is an alternate sentencing scheme that applies and imposes punishment based upon the fact of defendant's recidivism and punishment imposed under the three strikes law is not an enhancement. (People v. Turner (2005) 134 Cal.App.4th 1591, 1599.) Thus, in section 3 the abstract erroneously memorializes Kerrs admission of a prior strike conviction.

Section 3 of Kerrs abstract of judgment also erroneously lists two prior prison term enhancements for each count and indicates that the enhancements were stayed.

Section 1170.1, subdivision (a) provides:

any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (Italics added.)

Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions-authorized by sections 667.5, 667.6 and 12022.1-are of the first sort. The second kind of enhancements-those which arise from the circumstances of the crime-are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90, Cf. People v. Williams (2004) 34 Cal.4th 397, italics added.)

Since Kerr admitted the same two prior prison terms enhancements in each count, under Tassell the court was limited to imposing each enhancement only once as the final step in calculating Kerrs aggregate sentence. Thus, the abstract erroneously lists more than two prior prison term enhancements in section 3 of Kerrs abstract of judgment.

Further, the court did not stay any of the prior prison term enhancements, it purported to impose them concurrently. And as noted earlier, the court did not have jurisdiction to stay the prior prison term enhancements. (People v. White Eagle, supra, 48 Cal.App.4th at p. 1521.) Thus, the abstract of judgment also erroneously indicates that the prior prison term enhancements were stayed.

Moreover, the clerks minutes do not accurately memorialize the courts sentencing orders. For example, even though the court purported to impose the two prior prison term enhancements concurrent to the six-year term it imposed in count 2, the clerks minutes erroneously indicate the court stayed these enhancements.

DISPOSITION

The concurrent terms imposed on Kerrs prior prison term enhancements are stricken and the matter remanded to the trial court for resentencing and the issuance of an abstract of judgment in accord with the views expressed herein. The trial court is directed to ensure that the clerks minutes accurately reflect the courts sentencing orders.

The court is also directed to issue an amended abstract of judgment after resentencing Kerr and to serve a certified copy on the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Hill, J.

^[1] All further statutory references are to the Penal Code.