P. v Rivera
Filed 2/15/13 P. v Rivera CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL RIVERA,
Defendant and Appellant.
B238286
(Los Angeles
County
Super. Ct.
No. GA071240)
APPEAL from
a judgment of the Superior Court
of
County, Lisa B. Lench, Judge. Modified with directions and, as so modified,
affirmed.
Sharon
Fleming, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
After
a court trial, defendant
and appellant Michael Rivera was convicted of committing a series of offenses,
including several robberies and an assault, and was sentenced to a term of five
years in prison. The record contains
conflicting information regarding whether the court also found him guilty of
receiving stolen property. We conclude
the trial court did not find him guilty of that offense. Rivera also contends, and the People concede,
that his sentence on a subordinate count was miscalculated. Accordingly, we order the record corrected to
show Rivera was not convicted of receiving stolen property, and modify his
sentence on the weapons enhancement appended to count 2 to a term of four
months. In all other respects, we
affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
During a two-week period in May 2007, Rivera committed a
series of offenses at or near the Pasadena City College (PCC) campus.
a.
title="">[1]
On May
7, 2007, Rivera displayed a knife and robbed Duong Huynh of over $300 in a PCC
restroom.
On the afternoon of May 14, 2007, Rivera approached Alex Steimer near the PCC campus,
demanded money and Steimer’s iPod, and displayed a knife. Steimer gave Rivera $5. On May 18, 2007, Steimer was working at the
PCC radio station. Rivera entered the
station and began talking with Steimer.
Rivera distracted Steimer and took Steimer’s iPod when Steimer was not
looking.
On May
21, 2007, William Heim, Caltech’s Director of Security Operations, observed
Rivera riding a bicycle. Heim was aware
Rivera was wanted for various crimes committed in the area, and attempted to
arrest him. Rivera pushed his bicycle at
Heim. When Heim attempted to grab
Rivera, Rivera punched him.
b. Offenses
relating to the psychology textbook.
On the afternoon of May 10, 2007, PCC student Taylor
Calderone was seated at a Pasadena bus stop across from the
campus. Rivera was also waiting at the
bus stop. Rivera displayed a switchblade
knife and told Calderone he was going to take all Calderone’s money. Calderone gave Rivera $4. Rivera then demanded Calderone’s cellular
telephone, and Calderone complied.
Rivera then asked if Calderone had a laptop computer, an iPod, or an ATM
card. He told Calderone he was going to
take him to an ATM and have him “clean out†his account. When Calderone explained he had none of these
items, Rivera asked whether Calderone had anything else of value. Hoping to appease Rivera, Calderone gave him
a psychology textbook, explaining Rivera could sell it at a local bookstore for
$50. Rivera told Calderone that if he
saw him on campus, “this never happened,†and departed.
Later that day Rivera went to the
PCC radio station, where Collin Jones was working. Rivera asked Jones to help him sell the
psychology textbook. Jones agreed to
sell the book for him.
name="_ftnref2" title="">[2] He and Rivera went across the street to Book
Mart. While Rivera waited outside, Jones
went inside and sold the book for $10.
Jones gave Rivera the cash, but Rivera returned $5 to him in exchange
for his assistance in selling the book.
A few days after the incident
Calderone recovered the book from Book Mart, identifying it as his by virtue of
a bookmark placed in the book.
2.
Procedure.
In an information filed in July 2008, Rivera was charged with
the robberies of Huynh (count 1), Calderone (count 2), and Steimer (counts 6
and 7); the attempted robbery of Aaron Fink (count 5);
3); receiving stolen property (the textbook, count 4); and the assault of Heim
(count 8). After several continuances at
Rivera’s request, in July 2009 defense counsel declared a doubt about Rivera’s
competence. Proceedings were suspended
pursuant to Penal Code section 1368.
Rivera, proceedings were reinstated. The
court found Rivera competent in October 2009.
Rivera waived his right to a jury trial, and a bench trial commenced in
December 2009. The court found Rivera
guilty of the second degree robberies of Huynh, Calderone, and Steimer (count 6)
(§ 211) and the misdemeanor assault of Heim (§ 240). On count 7 (robbery of Steimer), the court
found Rivera guilty of the lesser included offense of misdemeanor theft
(§ 484, subd. (a)). The court
further found Rivera used a dangerous or deadly weapon, a knife, in commission
of the robberies of Huynh and Calderone.
(§ 12022, subd. (b)(1).) It
acquitted Rivera of the attempted robbery of Fink, charged in count 5. As we discuss post, it also acquitted Rivera of receiving stolen property as
charged in count 4. It dismissed count
3, the commercial burglary of Book Mart, in the interests of justice. (§ 1385.) The court sentenced Rivera to a term of five
years in prison. It imposed a
restitution fine, a suspended parole restitution fine, a court security fee,
and a criminal assessment fee. Rivera
appeals.
DISCUSSION
1.
The record must be corrected to
reflect that Rivera was not convicted of receiving stolen property.
Due to a discrepancy between the
reporter’s transcript and the court’s minute order, the parties disagree about
whether the court acquitted Rivera of receiving stolen property in
count 4. The reporter’s transcript
indicates that when rendering its verdict, the court stated: “With respect to count 4, violation of
. . . section 496(a), the court finds the defendant not guilty of
that charge.†The minute order, on the
other hand, states that the court found Rivera guilty on count 4.
Generally, when there is a conflict
between the oral pronouncement of judgment and a minute order, the former
controls and the latter is presumed to be the result of clerical error. (People
v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mitchell (2001) 26 Cal.4th 181, 185 [“An abstract of
judgment is not the judgment of conviction; it does not control if different
from the trial court’s oral judgment and may not add to or modify the judgment
it purports to digest or summarizeâ€]; People
v. Gonzalez (2012) 210 Cal.App.4th 724, 744; People v. Sharret (2011) 191 Cal.App.4th 859, 864 [the “oral
pronouncement of judgment controls over any discrepancy with the minutes or the
abstract of judgmentâ€]; People v. Gabriel
(2010) 189 Cal.App.4th 1070, 1073.)
It is also the “ ‘general rule’ †that “ ‘a record that
is in conflict will be harmonized if possible.
[Citation.] If it cannot be
harmonized, whether one portion of the record should prevail as against
contrary statements in another portion of the record will depend on the
circumstances of each particular case.’
[Citation.]†(
46 Cal.4th 186, 194, fn. 4; People
v. Smith (1983) 33 Cal.3d 596, 599; People
v. Harrison (2005) 35 Cal.4th 208, 226; People
v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2.)
Here, the record cannot be
harmonized: either the trial court found
Rivera guilty of receiving stolen property, or it did not. Thus, we consider whether the circumstances
of the case provide a clear indicator of which portion of the record should
control. Less than two months after the
court’s verdicts, the same deputy district attorney who had prosecuted the case
at trial filed a sentencing memorandum that referenced the fact Rivera had been
convicted on count 4. Defense counsel’s
responsive memorandum did not suggest this was error. The sentencing hearing transpired
approximately seven months after trial.
same attorney who had represented him at trial.
The deputy district attorney who appeared was not the same attorney who
had prosecuted the case. The reporter’s
transcript indicates that the sentencing judge was not the same judge who
presided over trial; however, the minute order memorializing the sentencing
hearing contradictorily indicates that the judge who presided over sentencing
trial. The court’s statements at the
sentencing hearing tend to confirm the minute order on this point. When the court imposed sentence on
count 4, defense counsel did not object or inform the court that Rivera
had not been convicted on that count. On
this record, Rivera argues that the reporter’s transcript is correct; he urges
that given the long delay between trial and sentencing, the court and the
parties no doubt relied upon the erroneous minute order at sentencing. The People, on the other hand, argue that,
given the sentencing memoranda and defense counsel’s failure to object at the
sentencing hearing, the minute order is most likely correct and the reporter’s
transcript contains a clerical error.
As the parties agree, however, it
is clear that Rivera could not have been lawfully convicted of both robbing
Calderone of the textbook in count 2, and receiving the same property, the
textbook, in count 4. It has long been
the common law rule that a person may not be convicted of both stealing and
receiving the same property. (
522; People v. Garza (2005) 35
Cal.4th 866, 871, 874.) This principle
is codified in section 496, subdivision (a).
(Smith, at p. 522.) Robbery is a form of aggravated theft. (People
v. Gomez (2008) 43 Cal.4th 249, 254.)
Apparently in reliance on this principle, at trial defense counsel
argued Rivera could not be convicted of both crimes, stating: “count 4, I assume that would be an
alternative between count 4, the receiving of the book, which was allegedly
taken by Mr. Rivera from Taylor Calderone in count 2. I would argue those are alternative
theories. Either the court would find
count 4 or count 2.â€
We presume that a trial court
“ ‘knows and applies the correct statutory and case law.’ †(People
v. Thomas (2011) 52 Cal.4th 336, 361; People
v. Braxton (2004) 34 Cal.4th 798, 814; People v. Galvez (2011) 195 Cal.App.4th 1253, 1264;
Cal.App.4th 1345, 1355.) Given the
undisputed fact that the court could not have properly convicted Rivera of both
count 2 and count 4, we apply the settled rule that the oral pronouncement of
judgment controls. Accordingly, we order
the record corrected to show that Rivera was acquitted, not convicted, on count
4, receiving stolen property. Because
the sentence on count 4 was stayed pursuant to section 654, remand for
resentencing is not required.
2.
Correction of Rivera’s sentence.
Rivera also argues that the trial
court miscalculated his sentence on count 2. The court selected count 1, the robbery of
Huynh, as the base count. On count 2,
the robbery of Calderone, the court properly imposed one-third of the midterm,
or one year, for the substantive offense.
(§ 1170.1, subd. (a).) However,
it imposed the full term of one year for the section 12022, subdivision (b)(1)
weapons enhancement. As the parties
agree, the court should have imposed one-third of the midterm, or four months,
on the enhancement. Section 1170.1,
subdivision (a), provides in pertinent part: “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.â€
(Italics added.) Accordingly, we
order the judgment modified to correct this error.
DISPOSITION
The
clerk of the superior court is directed to correct the court’s minute order
dated December 22, 2009, and the abstract of judgment, to reflect that Rivera
was acquitted of count 4, receiving stolen property. The clerk is also directed to modify the
abstract of judgment to reflect a sentence of four months on the Penal Code
section 12022, subdivision (b)(1) enhancement related to count 2. The clerk is directed to forward the modified
abstract of judgment to the Department of
Corrections. In all other respects,
the judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
name="_ftn1" title="">[1] Because
the evidentiary details of these offenses are not relevant to the issues
presented on appeal, we do not further discuss them.
name="_ftn2" title="">[2] Jones
did not know the book was stolen.
