P. v. Arbiso

Filed 6/21/07 P. v. Arbiso 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. John M. Tomberlin, Judge. Affirmed with directions.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with one count of possession of methamphetamine (count 1 ‑‑ Health & Saf. Code,  11378.) It was further alleged that defendant had suffered three prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (c), and two prior prison terms pursuant to Penal Code section 667.5, subdivision (b).^[1] Defendant pled guilty to count 1, and admitted one of the prior convictions, and both prior prison terms. The court, pursuant to the parties stipulation, dismissed the remaining allegations. Defendants plea agreement specified that she would serve a seven-year prison commitment consisting of the middle term of two years on count 1, one year on each of the prior prison term allegations, and three years on the prior conviction. The court pronounced sentence as specified in the plea agreement. However, both the minute order of sentencing and the abstract of judgment reflect that the court sentenced defendant to the middle term of two years, doubled to four years pursuant to Penal Code sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) on count 1; one year each for both of the admitted prior prison terms; and one year for the admitted prior conviction, for a total term of seven years imprisonment.

II. DISCUSSION

Defendants sole contention on appeal is that the minute order of sentencing dated May 30, 2006, and the abstract of judgment do not accurately reflect the actual sentence imposed. She maintains she is aggrieved by the erroneous reference to sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) in the minute order and abstract of judgment in that it limits the amount of conduct credit she may receive while incarcerated. The People concede the issue. We agree that the minute order and abstract of judgment must be modified to conform to the sentencing scheme as established in the plea agreement and reflected by the courts oral pronouncements.

Section 1170.12, subdivision (c)(1) is part of the so-called Three Strikes law which seeks to punish recidivist criminal behavior. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525-1526.) However, in order to impose sentence under these provisions, such allegations must have been pleaded and proved in the current proceeding . . . . (Id. at p. 1526.)

Here, none of the charging documents alleged that defendants prior convictions were strikes for purposes of Penal Code sections 1170.12, subdivision (c)(1) or 667, subdivision (e)(1). Likewise, the People did not prove that defendants prior convictions were strikes for purposes of those Penal Code sections nor did defendant admit such allegations. Rather, the People alleged and defendant admitted two prior prison term allegations pursuant to Penal Code section 667.5, subdivision (b) and one prior conviction pursuant to Health and Safety Code section 11370.2, subdivision (c).

Here, it is unmistakable that the references to sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) in the minute order and the abstract of judgment are the result of clerical error. As noted above, both the plea agreement and the courts pronouncement of sentence reflect that it imposed the middle term of two years on count 1, one year for each admitted prison prior, and three years for the admitted conviction. Where there is a discrepancy between the trial courts oral pronouncements and the clerks transcript, the courts oral pronouncements control. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Therefore, the superior court is directed to amend the minute order dated May 30, 2006, and the abstract of judgment to conform to the plea agreement and the courts pronouncement of sentence.

III. DISPOSITION

The trial court is directed to correct the minute order dated May 30, 2006, and the abstract of judgment to remove all references to sections 1170.12, subdivision (c)(1) and 667, subdivision (e)(1) and to correctly reflect the imposition of sentence as the middle term of two years on count 1, one year for each of the two admitted prior prison terms, and three years on the admitted prior conviction. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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