P. v. Tinoco

Filed 9/11/06 P. v. Tinoco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

FELONY PLEAS AND SENTENCING

Appellant, Manuel Carlos Tinoco, Jr., entered into separate plea agreements in two felony actions, F04901273-3 and F05903805-0. In case No. F04901273, appellant pled no contest to being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1)).^[1] He further admitted two prior serious felony allegations within the meaning of the three strikes law on condition that one would be stricken by the trial court. There was a lid of six years on appellant's sentence.

In case No. F05903805-0, appellant admitted unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count one), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), and an amended felony allegation that he failed to appear (§ 1320, subd. (b), count five).^[2] Appellant further admitted an on-bail enhancement (§ 12022.1). The remaining allegations, as well as a third criminal action, were to be dismissed.

On October 25, 2005, the trial court sentenced appellant. The court noted it believed a total sentence of 12 years was fair in appellant's case. The court found the principal term would be on the section 12021, subdivision (a)(1) offense in case No. F04901273-3. The court struck one of prior serious felony allegations. The court initially stated that the aggravating factors outweighed the mitigating factors and that it was going to impose the upper term, doubled pursuant to the three strikes law. The court imposed a term of six years. Later, however, the court found the mitigating and aggravating factors balanced each other and explained it was imposing the midterm of three years doubled to six years.

The court imposed consecutive sentences in case No. F05903805-0 of 16 months each in counts one, two, and five and imposed a term of two years on the on-bail enhancement. Appellant's total prison term is 12 years. The court imposed a restitution fine and granted applicable custody credits.

DISCUSSION

On appeal, appellant contends and respondent concedes that the trial court's sentence was unclear.^[3] The trial court was initially prepared to impose the upper term doubled in case No. F04901273-3. Later, however, the court stated it was clarifying its sentence and imposing the midterm. It is possible the court simply misspoke the first time or the second time. It is also possible the court misunderstood that the midterm doubled was four years rather than six years.^[4] Because of the ambiguity in the record caused by the trial court's conflicting statements, remand is appropriate to permit the trial court to clarify its sentence. (§ 1260; See People v. Garcia (1997) 59 Cal.App.4th 834, 839.)

DISPOSITION

Appellant's sentence is vacated and the case remanded to the trial court to clarify appellant's sentence. The court shall prepare an amended abstract of judgment reflecting that appellant's conviction in count one of case No. F05903805-0 was for unlawfully driving or taking a vehicle. The court shall forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.

^[2] The abstract of judgment incorrectly states that appellant admitted grand theft of an automobile. On remand, the court shall prepare an amended abstract of judgment accurately reflecting appellant's conviction.

^[3] Appellant urges this court to find that the trial court meant to select the midterm. We cannot do so based on the record. The court's comments are too ambiguous for us to conclude that it clearly meant to select the midterm sentence.

^[4] A violation of section 12021, subdivision (a)(1) is punished as a felony without a specific sentencing range. Where no sentencing range is set forth for punishment of a felony, section 18 states that the punishment range shall be 16 months, 2 years, or 3 years. Because of the application of the three strikes law to appellant's sentence, the trial court doubled his sentence. We cannot tell with certainty from this record, however, whether the court meant to impose the midterm or the upper term in case No. F04901273-3.