Filed 9/29/17 P. v. Rivera CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside, Christian F. Thierbach, Judge. Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

In 2010, a jury convicted Alberto Rivera, Jr. of one count of second degree murder (Pen. Code,[1] § 187, subd. (a)), one count of attempted voluntary manslaughter (§§ 664, 192, subd. (a)), and one count of discharging a firearm into an occupied vehicle (§ 246). The jury also found true allegations that Rivera personally discharged a firearm causing death or serious bodily injury (§ 12022.5, subd. (a)).

At the original sentencing the court imposed a determinate term of four years four months (one-third the midterm) for attempted manslaughter and three years for the firearm (also one-third the midterm) consecutive to a 40-year-to-life indeterminate sentence for the murder count.

Several years later, the court received a letter from the Department of Corrections and Rehabilitation indicating the determinate sentence must be imposed at full strength where it is consecutive to an indeterminate term. Counsel was appointed for Rivera and a new sentencing hearing was scheduled.

At the resentencing hearing the court imposed an upper term sentence for attempted voluntary manslaughter and the firearm enhancement for a term of 15 years six months. The court said the determinate term would have to be "served first." In the next sentence the court said the 40-year-to-life term was "to be served concurrently [to the sentence for attempted voluntary manslaughter]." The abstract of judgment and minutes reflect the 15 year six month sentence is to be served consecutively.

Rivera appeals. He contends the court's oral pronouncement of sentence must prevail over the written order, thus we should modify the abstract of judgment to reflect concurrent sentences. While we agree with the general principle argued by Rivera, on this record we are satisfied the court intended to correct its error from 2010 and to impose an increased term. The totality of the court's comment that the determinate term must be "served first" clearly demonstrates an intention to impose a consecutive term, notwithstanding a misstatement referring to serving the terms concurrently. Accordingly, we will affirm the revised sentence.[2]

STATEMENT OF FACTS

The facts of the offenses were discussed in our previous unpublished opinion in People v. Rivera (Feb. 5, 2013, D059390).

While stopped at an intersection, Rivera fired several shots into another vehicle striking the driver and killing the driver's brother.

DISCUSSION

Rivera's appeal focuses on the trial court's use of the word "concurrently" to argue the written record is inconsistent with the oral pronouncement of judgment. Since the oral pronouncement ordinarily controls over inconsistent minutes, Rivera argues we should modify the abstract of judgment to order the determinate term to be served concurrently with the 40-year-to-life term. Effectively, Rivera argues his sentence must be reduced below that which was originally set. The People contend the trial court's intentions are clear in the record, but if we have doubts we should remand the case to permit the trial judge to clarify his remarks. We think the record clearly demonstrates the trial court intended to impose consecutive sentences.

A. Legal Principles

As a general proposition, the oral pronouncement of judgment controls over conflicts in the written form. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We can correct clerical errors in the abstract of judgment where necessary to conform the judgment to the oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Where there is a conflict in the record, it is our responsibility to harmonize the record if that can reasonably be accomplished considering all the circumstances. (People v. Smith (1983) 33 Cal.3d 596, 599.)

B. Analysis

This is not a case where there is simply an inconsistency between the oral pronouncement and the written record. Considering the whole record, it simply appears the trial judge misspoke when he said the indeterminate term would be served concurrently.

The error in the original sentence was that the trial court imposed the consecutive determinate term at one-third the midterm instead of setting at full strength. When a determinate sentence is consecutive to an indeterminate sentence, the former is imposed at full strength, not one-third the midterm. Further, the determinate term must be served first, before the indeterminate term commences.

When the trial judge recalculated the determinate term, he selected the upper term for both the offense and the enhancement. The court gave reasons for selecting the upper term which indicated he thought the current offense was more serious than others of the same nature. The court's description of the offense at the resentencing is consistent with the court's expressed views at the sentencing in 2010. There the court believed Rivera had been lucky with the jury verdict and escaped a "slam-dunk . . . first-degree murder." At the original sentencing the trial judge expressed the view: "Frankly, if I could, I'd throw the book at him. I'd send him away for as long as I possibly could."

If we examine the court's comments in light of the whole record it is abundantly clear the court intended to increase the total term and to have the sentences run consecutively, as they were originally imposed. Otherwise, the court's comment that the determinate term will be served first makes no sense. We are comfortable that the word "concurrently" that was either uttered by the judge, or misheard by the reporter was simply a "slip of the tongue." We believe our interpretation of the whole record harmonizes the trial court's comments and obvious objective with the written record of the judgment.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.