Filed 5/24/17 P. v. Silva CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

GARY DALE SILVA,

Defendant and Appellant.
H043968
(Monterey County
Super. Ct. Nos. SS143136A,
SS160926A)
In two cases below, defendant Gary Dale Silva pleaded no contest to two counts of vehicle theft and one count of evading a peace officer. The trial court imposed a total four-year term including a one-year term for a prior prison term enhancement under Penal Code section 667.5, subdivision (b). Silva, however, never admitted the prior prison term enhancement, and it was never found true by any jury or court.
Silva contends the trial court imposed an unauthorized sentence. The Attorney General concedes Silva never admitted a prior prison term enhancement, but the Attorney General contends the trial court simply misspoke at the sentencing hearing.
The transcript of the sentencing hearing, the minutes of the hearing, and the abstract of judgment all reflect the imposition of a one-year term for a prior prison term enhancement. No grounds support the imposition of this term. We will reverse the judgment and remand for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offenses
1. Case No. SS143136A
On December 20, 2014, police stopped Silva in a truck with a mismatched registration tag and four cans of gasoline in the bed. A records check showed the truck was reported stolen and Silva’s license was suspended. Behind the passenger’s seat, police found nearly an ounce of marijuana, a glass tobacco smoking pipe, a lock pick set, a center punch tool, a car access key fob, and 28 keys. Some of the keys had been shaved.
2. Case No. SS160926A
On June 6, 2016, police spotted Silva driving a stolen truck. Police attempted to stop the truck, but Silva fled, driving at speeds up to 80 miles per hour. He was forced to stop when his truck encountered mechanical problems. After he was taken into custody, Silva claimed the truck had been given to him. The truck’s owner told police it had been stolen from her residence.
B. Procedural Background
In case No. SS143136A, the prosecution charged Silva by felony complaint with three counts: Count One—Unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); Count Two—Possession of burglar tools (§ 466); and Count Three—Petty theft (§ 484, subd. (a)). The complaint alleged four enhancements: A prior auto theft conviction (§ 666.5, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)).
On June 30, 2015, Silva pleaded no contest to Count One and admitted the prior auto theft conviction. He entered his plea in exchange for a split sentence of one year in county jail and two years suspended with mandatory supervision.
On September 17, 2015, the trial court denied probation and imposed a split sentence of one year in county jail with the execution of two years suspended on the condition that Silva be placed on mandatory supervision. The minutes of the hearing state that the court imposed the middle term of two years for Count One, “[p]lus enhancement for allegation as to Count 1 pursuant to PC666.5(a) of 1 year(s), consecutive” for a total term of three years with two years suspended on the condition of mandatory supervision. The abstract of judgment accurately reflects this sentence.
On June 8, 2016, in case No. SS160926A, the prosecution charged Silva by felony complaint with three counts: Count One—Unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); Count Two—Evading a peace officer in willful disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)); and Count Three—Driving with the privilege suspended for a prior DUI conviction (Veh. Code, § 14601.2, subd. (a)). The complaint alleged six enhancements: A prior auto theft conviction under section 666.5, subdivision (a), and five prior prison terms under section 667.5, subdivision (b).
On June 9, 2016, the probation department filed a petition and notice of violation of mandatory supervision in case No. SS143136A based on the June 6 stolen vehicle offense. On June 14, 2016, Silva denied the violation. The trial court summarily revoked mandatory supervision to retain jurisdiction.
On June 21, 2016, in case No. SS160926A, Silva pleaded no contest to Counts One and Two, and he admitted the prior auto theft under section 666.5, subdivision (a). He entered his plea in exchange for the promise of a total term of four years in prison, consisting of the four-year upper term on Count One, with the term on Count Two and the remaining term in case No. SS143136A to run concurrently. The court also found Silva violated the terms of his mandatory supervision in case No. SS143136A.
On August 16, 2016, the trial court imposed a total term of four years in prison. The court stated that the sentence consisted of a three-year term on Count One in case No. SS160926A, “plus one year on the prior prison term, consecutive, for a total sentence of four years . . . .” Similarly, on Count Two, the court imposed a term of three years, “plus one year prior prison term, for four years, concurrent with Count 1.” In case No. SS143136A, the court revoked and terminated mandatory supervision and ordered Silva to serve the balance of the three-year term in state prison concurrent with the term in case No. SS160926A. With respect to the enhancement, the minutes of the hearing state, “Plus enhancement for allegation as to count 1 pursuant to PC667.5(b) of 1 year(s), consecutive.” The combined abstract of judgment lists two enhancements: A consecutive one-year term under section 667.5, subdivision (b), and a concurrent one-year term under section 666.5, subdivision (a).
II. DISCUSSION
Silva contends the trial court violated the terms of his plea agreement and imposed an unauthorized sentence by imposing a one-year term under section 667.5, subdivision (b)—a prior prison term enhancement Silva never admitted. He requests that we vacate the judgment and remand for further proceedings.
The Attorney General disputes that the trial court imposed an unauthorized sentence. The Attorney General acknowledges that Silva did not admit to a prior prison term enhancement, but the Attorney General contends the court simply “misspoke” regarding the enhancement. The Attorney General requests that we order correction of the minute order and abstract of judgment, and that we affirm the judgment in all other respects.
At the sentencing hearing on August 16, 2016, the trial court imposed a consecutive one-year term for a prior prison term enhancement under section 667.5, subdivision (b). The minutes of the hearing and the abstract of judgment list the enhancement accordingly. Silva never admitted such an enhancement, and it was never found true by any jury or court. Rather, Silva admitted a prior auto theft conviction under section 666.5, subdivision (a).
It may well be that the trial court misspoke at the sentencing hearing, and that the court intended to base the sentence in part on the prior auto theft, not a prior prison term. But we are not free to ignore the court’s oral pronouncements. “ ‘ “Rendition of judgment is an oral pronouncement.” ’ ” (People v. Morales (2014) 224 Cal.App.4th 1587, 1594, quoting People v. Mesa (1975) 14 Cal.3d 466, 471.) Nor can we correct the minutes of the hearing and the abstract of judgment to be inconsistent with the court’s oral order. As a general rule, when there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) As the Attorney General points out, Silva received the total sentence he bargained for—a total four-year term. But we cannot anticipate what collateral consequences Silva may face in the future if the imposition of a prior prison term enhancement remains on the record. We conclude resentencing is necessary.
Silva contends he is also entitled to withdraw his pleas. We are not persuaded. The trial court can resentence Silva in accord with the previously negotiated dispositions, giving both parties the benefit of the agreements they have already reached. (See People v. Somnang Kim (2011) 193 Cal.App.4th 1355, 1362 [relief may consist of “specific performance” of the agreement as made].) We see no grounds to justify withdrawing the pleas. We will reverse the judgment and remand for resentencing consistent with the previously negotiated dispositions.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for resentencing consistent with the previously negotiated dispositions.

_________________________
RUSHING, P.J.





WE CONCUR:






_________________________
PREMO, J.






_________________________
GROVER, J.
















People v. Silva
H043968