P. v. Osorio

Filed 11/28/07 P. v. Osorio CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas A. Fettel, Judge. Affirmed in part; reversed in part.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, 664, 187, subd. (a)) (count 1), carjacking (Pen. Code, 215, subd. (a)) (count 2), being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)) (count 3), unlawfully driving or taking a vehicle (Veh. Code, 10851, subd. (a)) (count 4), and resisting, obstructing, or delaying a peace officer (Pen. Code, 148, subd. (a)(1)) (count 5).^[1] Including enhancements, the court sentenced defendant to an indeterminate state prison term of 86 years to life. Defendant appealed and this court directed the trial court to resentence defendant, which the trial court did.^[2]

Defendant contends: (1) his constitutional rights were violated because he was not present at his resentencing hearing; (2) his Sixth Amendment rights were violated because the trial court imposed consecutive sentences based upon facts that were not found by a jury to be true beyond a reasonable doubt; (3) his Sixth Amendment rights were violated because the trial court found section 654 did not apply to defendants sentence based upon facts that were not found by a jury to be true beyond a reasonable doubt; and (4) the minute order and abstract of judgment must be amended because they are inaccurate. We conclude the sentence must be reversed, primarily due to the trial courts failure to pronounce judgment.

PROCEDURAL BACKGROUND

On December 19, 2005, this court issued an opinion in defendants case with the following disposition: The trial court is directed to amend the minute order and abstract of judgment to reflect a stayed sentence in count 4. The court is also directed to strike the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), in count 1, and the firearm enhancement under section 12022.53, subdivision (d), in count 2. The court then may exercise its discretion to impose or not impose a lesser firearm enhancement under section 12022.53, subdivision (b), in count 2. In all other respects, we affirm the judgment. (People v. Osorio (Dec. 19, 2005, E036373) [nonpub. opn.], at pp. 23-24.)

The trial court conducted a resentencing hearing on May 18, 2006; defendant was not present. When the trial court exercised its discretion as to the firearm enhancement in count 2, the following discourse took place:

The Court: Well, I heard this trial on [defendant], and frankly, I think the aggravated firearm enhancement is appropriate. I think [defendant] was not only violent, he was continuously violent. And the facts of the case, I think, totally justified the enhanced penalty. I dont understand -- I dont understand how he could claim any mitigating factors. There were none. [] Could you think of any, [defense counsel]? I mean, just as a matter of record here.

[Defense counsel]: No, your Honor.

The Court: I couldnt either. The fact is, I think all the factors were aggravated. In any event, I would impose the firearm enhancement as previously -- as previously imposed, and the other orders are in conformance with the writ.

[The People]: Correct.

The Court: Okay.

[The People]: And that 25-to-life enhancement would be consecutive?

The Court: Oh, absolutely.

[The People]: And that would be, I think, what [defendant] would ask, because he wanted as much time as possible to work out and watch television, according to the probation report, if the Court may remember.

After this verbal exchange, the court announced that will be the order. Later, the People brought to the courts attention that the remittitur from this court directed the trial court to stay on the 25-to-life enhancement, but that the Court could exercise discretion and still impose ten years under the (b) enhancement. The trial court responded that it intend[ed], after having heard the facts of this case, to give [defendant] every day that [it] possibly could. The court assume[d] that any statements [it] made previously would apply to that ten-year enhancement. The court then suggested that the People and defendants trial counsel [u]se [the courts] office, sit down in there, and define for the court clerk what to put on that minute order as corrected . . . . [] Because [the court doesnt] want . . . this thing coming back again.

In July 2006, defendants appellate counsel contacted the trial court to inform it that the minute order and abstract of judgment from the May 18, 2006, resentencing hearing contained several errors. In July 2006, the matter was scheduled to be heard in the trial court, but was ultimately continued until November 7, 2006.

It is unclear from the record exactly what occurred at the hearing in November 2006, because the reporters transcript reflects different events than the clerks transcript. The reporters transcript indicates that the parties stipulated to amend the minute order and abstract of judgment with whatever the exact language was in the letter from the appellant [sic] department. The trial court said that [it]ll ask [the] clerk to do that, and [it] ha[s] highlighted the section . . . on which that will be done. However, in contrast to the brief verbal exchange documented in the reporters transcript, the minute order reflects that sentences for each of defendants convictions were vacated and that the court imposed a new sentence as to each crime.

DISCUSSION

A. Failure to Pronounce Judgment

Preliminarily we must address the trial courts failure to pronounce judgment upon defendant.

Judgment must be pronounced orally in the presence of the defendant, and it must reflect the courts determination of the matter before it. [Citation.] The pronouncement of judgment is a judicial act [citation], and is to be distinguished from the ministerial act of entering the judgment as pronounced in the minutes or records of the court [citation]. [Citations.] (People v. Prater (1977) 71 Cal.App.3d 695, 701.)

In the instant case, the trial court did not orally pronounce judgment at either resentencing hearing. At the first resentencing hearing, in May 2006, the trial court suggested that the People and defendants trial counsel [u]se [the courts] office, sit down in there, and define for the court clerk what to put on that minute order as corrected . . . . At the second hearing, in November 2006, the trial court said it would ask [the] clerk to do that. The trial court failed to orally pronounce judgment, rather, it referred resentencing to the attorneys involved in the case and to the court clerk. Accordingly, the sentence as written in the clerks transcript must be reversed because the court never orally pronounced judgment.

The failure of the trial court to pronounce judgment within the time limitation set by statute does not, absent prejudice, result in a loss of jurisdiction in the trial court to pronounce judgment at a later date. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 724.) We find no prejudice in the trial courts failure to pronounce judgment because in defendants opening brief he argues that he should be resentenced and makes no claim of prejudice arising from the need to conduct yet another resentencing hearing.

B. Defendants Absence At the Resentencing Hearing

Defendant contends his constitutional rights were violated when the trial court resentenced defendant while he was not present. As part of this courts previous opinion in defendants case, we held that the trial court must resentence defendant as to the firearm enhancement in count 2, and that [t]he court then may exercise its discretion to impose or not impose a lesser firearm enhancement under section 12022.53, subdivision (b) . . . . (People v. Osorio, supra, E036373, at pp. 23-24.) Defendant argues that his absence from the resentencing hearing resulted in prejudice because he was unable to defend himself against the imposition of punishment for the lesser firearm enhancement. The People concede that existing case law supports defendants argument; however, the People suggest that because the trial court was imposing a lesser sentence than that originally imposed, defendants presence was arguably not required.

Sections 977, subdivision (b)(1), and 1193, subdivision (a), require that a defendant be present at sentencing unless the defendant has expressly waived that right. The defendant must show that any violation of this right resulted in prejudice or violated the defendants right to a fair and impartial trial. [Citation.] (People v. Hines (1997) 15 Cal.4th 997, 1039.) However, a [d]efendants absence, even without waiver, may be declared nonprejudicial in situations where his presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. [Citations.] (People v. Medina (1990) 51 Cal.3d 870, 902-903.)

The record reflects that on May 18, 2006, [d]efendant [was] not present at the resentencing hearing because he was in State Prison, despite the trial court ordering defendant to appear. The record notes that defendant was also not present at the hearing on November 7, 2006, because he was in State Prison. There is nothing in the record to indicate that defendant waived his right to be present at the resentencing hearings, in fact, defendant was present in court on September 12, 2006, when the court ordered the hearing continued.

Defendants absence from the resentencing hearings prejudiced his ability to contribute to his defense regarding the imposition of punishment for the firearm enhancement in count 2. As part of his defense, if he had been present, defendant may have offered facts in mitigation in response to the trial courts request for such information. Defendant may also have wanted to defend himself against the Peoples comments regarding defendants alleged wish for as much prison time as possible. Defendants absence also denied him the opportunity to request that the court pronounce judgment. We conclude, defendants right to be present at sentencing, pursuant to sections 977, subdivision (b)(1), and 1193, subdivision (a), was violated because defendants presence bore a reasonable relationship to the fullness of his opportunity to defend against the imposition of punishment for the firearm enhancement in count 2.

C. Minute Order

Defendant requests the minute order dated November 7, 2006, and the abstract of judgment be amended because they are inaccurate.^[3]

When a defendant contends the minute order is inaccurate, the general rule is that [i]f the judgment entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts. [Citation.] (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) We are unable to apply this rule in defendants case because the trial court did not pronounce judgment and, therefore, we have nothing in the reporters transcript by which to assess the accuracy of the minute order. In fact, it is unclear how the information regarding defendants sentences being vacated and then defendant being resentenced came to be in the November 7, 2006, minute order.

Nevertheless, we note that the minute order is incorrect in regard to the firearm enhancement in count 2. A sentence of 10 years to life for a violation of section 12022.53, subdivision (b), is not valid because the punishment for such a violation is an additional and consecutive term of imprisonment in the state prison for 10 years. However, due to the trial courts failure to pronounce judgment, we cannot properly review defendants contention regarding the alleged errors in the minute order and abstract of judgment. Consequently, the sentence must be reversed.

D. Consecutive Sentences

Defendant contends the trial court violated his Sixth Amendment right to a jury trial by imposing consecutive sentences based upon facts that were not found by a jury to be true beyond a reasonable doubt.

In May 2006, when the trial court imposed consecutive sentences in defendants case, its only stated reason was that it intend[ed], after having heard the facts of the case, to give [defendant] every day that [it] possibly could. Further, the court stated that it assume[d] that any statements [it] made previously would apply to that ten-year enhancement. However, it is unclear which statements the trial court was referring to and whether it intended its previous statements to apply to its decision regarding consecutive terms.

At the November 2006 hearing, where the clerk entered into the minutes that defendants sentences had been vacated and that defendant was resentenced, there is nothing in the reporters transcript documenting such events and, accordingly, there are no reasons or statutory authority cited in the record supporting the imposition of consecutive terms. Consequently, in regard to both resentencing hearings, we cannot be certain why the trial court chose to impose consecutive sentences because it did not explicitly state its reasons or what statutory authority it was relying on in making its decisions. Accordingly, we cannot properly review defendants contention and the sentence must be reversed.

E. Section 654

Defendant contends the trial court violated his Sixth Amendment right to a jury trial by not applying section 654 to his sentences for attempted murder and carjacking based upon facts that were not found by a jury to be true beyond a reasonable doubt. Defendant argues that the trial courts factual determination that he maintained two separate objectives during the carjacking and attempted murder resulted in an increase in his sentence and, therefore, it was improper under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) for the trial court to make those determinations because any fact that results in an increased sentence must be proven beyond a reasonable doubt to a jury.

Section 654 provides that a trial court may not punish a defendant under more than one provision of the Penal Code if the defendants crimes result from an indivisible course of conduct. (People v. Siko (1988) 45 Cal.3d 820, 823.) Whether a course of conduct is divisible and, therefore, punishable by more than one section of the Penal Code is determined by the intent and objective of the defendant at the time of the offense; if all of the offenses were incident to one objective, a defendant may be punished under only one section of the Penal Code. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1442-1443.)

We note that there was no discussion at either resentencing hearing regarding the application of section 654. However, section 654 clearly was not applied in this case because the court did not stay the sentences for defendants convictions on counts 1 or 2. We address defendants contention in order to provide the trial court with guidance, should this issue be raised at the next resentencing hearing.

In Apprendi, Blakely, and Cunningham, the high court was concerned with issues regarding the defendants constitutional rights [being] violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding[s]. [Citations.] (Blakely, supra, 542 U.S. at p. 303; see also Cunningham, supra, 127 S.Ct. at p. 860.) The application of section 654 does not raise the same concerns. (People v. Cleveland (2001) 87 Cal.App.4th 263, 270.) Section 654 reduces a defendants total prison term and a courts decision not to apply section 654 does not raise a defendants sentence beyond that already anticipated by the jurys findings. (Cleveland, at p. 270.)

Accordingly, we conclude the trial courts decision not to apply section 654 to defendants sentence did not violate defendants Sixth Amendment rights.

DISPOSITION

The sentence imposed at defendants resentencing hearing is reversed. The Superior Court of San Bernardino County is directed to resentence defendant in accordance with our previous opinion in this case, No. E036373.^[4] In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

RICHLI

J.

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

^[2] We take judicial notice of our opinion in defendants previous case, No. E036373. (Evid. Code, 459, subd. (a).)

^[3] Defendant requests the minute order dated November 18, 2006 be amended; however, the record does not contain a minute order dated November 18, 2006. The record includes minute orders dated May 18, 2006, and November 7, 2006. We infer from defendants argument that he intended to refer to the minute order dated November 7, 2006, although both minute orders contain the same error regarding a 10-year-to-life term for the violation of section 12022.53, subdivision (b).

^[4] When we issued our first opinion in this case, our Supreme Court had not yet decided People v. Palacios (2007) 41 Cal.4th 720. In Palacios, the court held that section 654 does not apply to section 12022.53. (Palacios, supra, at pp. 727-728.) In defendants original appeal, we applied section 654 to his violation of section 12022.53 in count 2. (People v. Osorio, supra, E036373, at p. 20.) Despite this newly settled rule, our original decision is still applicable because the law of the case doctrine requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong. [Citation.] (People v. Barragan (2004) 32 Cal.4th 236, 246.)