Filed 8/15/17 P. v. Austin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 San Diego County, Ronald F. Frazier, Judge. Reversed and remanded.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Anthony DaSilva and Garrett Beaumont, Deputy Attorneys General for Plaintiff and Respondent.

In June 2015 Richard Dale Austin pleaded guilty to assault by means of force likely to produce great bodily injury (Pen. Code,[1] § 245, subd. (a)(4)) arising out of a domestic violence incident. He admitted a strike prior conviction in exchange for dismissal of the remaining charges. Austin's change of plea form indicated that he faced a maximum of eight years in prison, which is double the four-year upper term based on his strike prior conviction. (§ 667, subds. (e)(1).) Before he could be sentenced Austin tested positive for methamphetamine, which the prosecutor described as a Cruz violation.[2]

At the sentencing hearing in August 2015, the trial court indicated that it had read the probation report and change of plea form. The probation report recommended the middle term of three years, doubled to six years for the strike prior offense. The trial court found "no basis to depart from the indicated sentence," but struck Austin's strike prior conviction, making him eligible for probation. The court suspended imposition of sentence and placed Austin on three years' formal probation on stated conditions. Those conditions included a 148-day commitment to county jail with credit for time served. The reporter's transcript and the order granting probation do not indicate the length of the suspended sentence.

In June 2016 Austin tested positive for controlled substances, which constituted a violation of his probation. At the September 2016 hearing, defense counsel argued that Austin should be reinstated on probation. The prosecutor asked the trial court to impose the middle term of three years. During the course of the hearing, the parties agreed that Austin had total custody credits of 469 days. The trial court stated:

"All right. The court revokes you and has considered all of the argument and considered Mr. Austin's statement. Any fines not previously satisfied—the credit time served is now satisfied by credit time served. All previously imposed fees remain. Any victim restitution previously imposed remains."

No party objected or asked for clarification. The abstract of judgment and the court's minute order indicate that Austin received a three-year prison term. Austin timely appealed. He contends that the abstract of judgment and court minutes must be corrected to reflect the court's oral pronouncement, that he did not receive a prison term but was sentenced to credit for time served. Because he did not receive a prison term, he argues that the legal result under subdivision (b)(1) of section 17[3] is that he received a misdemeanor sentence.

The People assert we should remand the case to the trial court to clarify the oral pronouncement of judgment, or alternatively, correct or settle any disputes regarding errors or omissions in the record. The People note that Austin is currently in custody and this creates an ambiguity as to the sentence received. We reverse the judgment and remand the matter to the trial court for the sole purpose of clarifying its sentence.

DISCUSSION

Generally, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) This general rule, however, is not to be mechanically applied. Instead, where a record is in conflict " 'it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case.' " (People v. Smith (1983) 33 Cal.3d 596, 599 [record supported defendant's claim, no irreconcilable conflict appeared].)[4]

Here, an irreconcilable conflict appears in the record. The abstract of judgment and court minutes indicate that Austin received a three-year prison term, the middle term advocated by the prosecutor. The reporter's transcript does not state that Austin received a prison term. Instead, it cryptically provides that "credit time served is now satisfied by credit time served," a "sentence" not advocated by either party. It is impossible to reconcile the reporter's transcript with the abstract of judgment and court minutes. Accordingly, the judgment is reversed for the sole purpose of allowing the trial court to clarify its intended sentence.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court for the sole purpose of clarifying its intended sentence. If the court did not intend to impose a prison term it shall amend the abstract accordingly. If, on the other hand, the court intended to impose a prison term, it shall state the sentence and reinstate the judgment.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.