P. v. Mitchell
Filed 11/18/08 P. v. Mitchell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. CARL D. MITCHELL, Defendant and Appellant. | C058042 (Super. Ct. No. 04F09262) |
Defendant Carl D. Mitchell previously appealed his sentence of 384 years to life in prison. He returns to this court after the trial court failed to recalculate his sentence on remand. Finding error, we shall again remand this matter and direct the trial court to recalculate defendants sentence in light of our prior decision.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts from our prior opinion:
Defendant [] was convicted by a jury of three armed robberies (Pen. Code, 211),[1]and the false imprisonment of two victims in each of the armed robberies. ( 236.) The jury found true a personal use of a firearm enhancement as to each of the nine charged counts. ( 12022.53, subd. (b), 12022.5, subd. (a).) The trial court found defendant had suffered eight prior robbery convictions, bringing defendant within the provisions of sections 667, subdivisions (a) and (b)-(i), and 1170.12.
Defendant was sentenced to consecutive terms of 35 years to life for the three robbery convictions and to consecutive terms of 33 years to life for three of the six false imprisonment convictions. The court stayed imposition of sentence on the remaining three false imprisonment convictions pursuant to section 654. The trial court imposed additional 10-year terms on the robbery convictions pursuant to section 12022.53, subdivision (b), and additional consecutive 10-year terms on the three false imprisonment convictions pursuant to section 12022.5, subdivision (a). The court imposed [six] additional consecutive 20-year terms for [four] prior serious felony convictions pursuant to section 667, subdivision (a). The total prison term imposed amounted to 384 years to life. (People v. Mitchell (March 8, 2007, C050014) [nonpub. opn.].)[2] Defendant appealed.
On appeal, defendant argued, among other things, that there was insufficient evidence to prove his eighth prior conviction. (People v. Mitchell, supra, C050014.) The People conceded the error and after reviewing the record, this court accepted the Peoples concession. (Ibid.) The trial courts true finding of appellants eighth alleged prior conviction was reversed, defendants sentence was vacated, and the matter was remanded for recalculating defendants sentence. (Ibid.)
On remand, defendant appeared with counsel, the trial court denied defendants request for a continuance, and the following colloquy took place on the record:
THE DEFENDANT: Your Honor, may I address the court?
THE COURT: No, you may not. [] Based on the remand the -- the sentence that was originally imposed is unchanged. The only difference is that the 8th prior conviction will not be considered when imposing the sentence. The total aggregate prison sentence of 384 years to life is therefore reaffirmed and reimposed and ordered executed at this time. Neither a supplemental probation report nor an amended abstract of judgment was prepared. Defendant appeals.
DISCUSSION
Defendant makes three claims on appeal: (1) the trial court erred in failing to recalculate his sentence on remand; (2) the trial court erred in failing to order a supplemental probation report; and (3) the trial court erred in not allowing defendant to address the court prior to sentencing.
The trial court initially calculated defendants sentence based on the existence of four prior serious felonies brought and tried separately pursuant to section 667, subdivision (a). In defendants first appeal, we found there was insufficient evidence to support the trial courts true finding as to one of those priors, leaving only three to consider in calculating defendants sentence. (People v. Mitchell, supra, C050014.) This necessarily impacted the calculation of defendants sentence, which, on remand, the trial court failed to do.
The People concede the trial court erred in failing to recalculate defendants sentence. We accept the Peoples concession. We shall remand and order the trial court to recalculate defendants sentence.
Defendant also claims the trial court erred in failing to obtain a supplemental probation report on remand. While the People agree that a supplemental probation report would be helpful, they do not agree it is required. The People are correct; whether to order a supplemental probation report for a defendant, who is ineligible for probation, lies within the sound discretion of the trial court. (People v. Garcia (2008) 161 Cal.App.4th 475, 484; People v. Webb (1986) 186 Cal.App.3d 401, 409 [same].) Thus, we will not order the trial court to prepare one.
Defendant further argues that the trial courts failure to offer him an opportunity to make a statement at the sentencing hearing violated his right of allocution under section 1200, his right to present a statement in mitigation, and his right to due process. Defendants contentions are without merit.
Defendant is not entitled to make a statement in mitigation under section 1200. (People v. Evans (2008) 44 Cal.4th 590.) Prior to entry of judgment, defendant is entitled to allocute under section 1200, and to make a statement in mitigation under section 1204 if he is under oath and subject to cross examination. (People v. Evans, supra, at pp. 592-593, 597-598.) Defendants time to allocute or make a statement in mitigation however, has long passed.
Judgment in this matter was entered in 2005. That judgment was affirmed in the prior appeal. (People v. Mitchell, supra, C050014.) The only issue on remand in the prior appeal, as here, is the recalculation of defendants sentence in light of this courts ruling. Under such circumstances, defendant is not entitled to a second, now third, opportunity to allocute or present a statement in mitigation.
DISPOSITION
Appellants sentence is vacated. The matter is remanded and the trial court is directed to recalculate defendants sentence in light of the prior decision by this court that the prosecution proved only three prior serious felony convictions under section 667, subdivision (a). After recalculating defendants sentence, the trial court is further directed to prepare an amended abstract of judgment that accurately reflects defendants convictions and his sentence, and deliver the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
CANTIL-SAKAUYE , J.
We concur:
SIMS , Acting P.J.
HULL, J.
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[1] Hereafter, undesignated statutory references are to the Penal Code.
[2] Defendant filed a request for judicial notice of the record in his prior appeal. The court treated it as a motion to incorporate that record by reference and granted the motion.
