P. v. Holbrook
Filed 8/10/07 P. v. Holbrook CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN HOLBROOK, Defendant and Appellant. | D049515 (Super. Ct. Nos. SCD 187211; SCD 195927) |
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Reversed in part; affirmed in part and remanded with directions.
This is an appeal by Benjamin Holbrook in two criminal cases. In the first case (SCD 187211), he contends the court did not orally pronounce sentence, and the abstract of judgment and minutes reflect a sentence encompassing a strike that was previously dismissed. The People respond that the court orally pronounced a sentence that did not include the strike, but concede that the abstract of judgment and the minute order must be corrected to delete references to the strike. We agree with the People and accordingly remand the case to the sentencing court so that it may make those corrections.
In the second case (SCD 195927), Holbrook contends the judgment must be reversed because the record does not show that he personally waived his right to a jury trial. The People properly concede he is correct, and we reverse the judgment.
I
PROCEDURAL BACKGROUND
A. SCD 187211
In December 2004 Holbrook pleaded guilty to possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)) and misdemeanor possessing drug paraphernalia (Health & Saf. Code, 11364). He admitted four prior prison terms (Pen. Code, 667.5, subd. (b)) and a strike (Pen. Code, 667, subds. (b)-(i)). In April 2005 the court dismissed the strike and placed him on three years' probation.
B. SCD 195927
In May 2006 Holbrook was found guilty in a court trial of selling cocaine base (Health & Saf. Code, 11352, subd. (a)), possessing cocaine base for sale (Health & Saf. Code, 11351.5), and misdemeanor possessing drug paraphernalia (Health & Saf. Code, 11364). In August the court found true allegations that he had served four prior prison terms (Pen. Code, 667.5, subd. (b)) and suffered a strike (Pen. Code, 667, subds. (b)-(i)).
C. Sentencing
The court revoked probation in SCD 187211. In August 2006 it sentenced Holbrook to 10 years in prison as follows: In SCD 195927, it dismissed two of the prison priors and sentenced him to eight years (twice the middle term) for selling cocaine base, a concurrent term for possessing cocaine base for sale and one year for each of the two remaining prison priors. In SCD 187211, the minutes reflect a four-year middle term sentence for possessing a controlled substance, pursuant to Penal Code section 667, subdivisions (b) through (i), and concurrent with the sentence in SCD 195927. The abstract of judgment reflects an eight-year middle term concurrent sentence pursuant to Penal Code section 667, subdivisions (b) through (i). The reporter's transcript reflects a middle term concurrent sentence of unspecified length, with no reference to a strike or any enhancement.
II
CONTENTIONS
Holbrook appeals, contending (1) in SCD 195927, the judgment must be reversed because the record does not show that he personally waived his right to a jury trial and (2) in SCD 187211, the eight-year sentence is contrary to law because (a) the court did not orally pronounce sentence and (b) the strike was dismissed in April 2005. As to the first issue, the People concede Holbrook is correct. As to the second issue, the People respond that the court pronounced a two-year sentence, which did not encompass the strike, and the abstract of judgment and the minute order should be corrected accordingly.
We agree that the judgment in SCD 195927 must be reversed. As to SCD 187211, we determine that the court did pronounce sentence and the abstract of judgment and minute order must be corrected to delete references to the strike.
III
DISCUSSION
A. The Judgment in SCD 195927 Must be Reversed
Holbrook contends the judgment in SCD 195927 must be reversed because the record does not reflect that he personally waived his right to a jury trial. The People properly concede Holbrook is correct. (People v. Ernst (1994) 8 Cal.4th 441, 446, 448-449.) The minutes of a May 11, 2006, hearing before Judge David M. Gill indicate a waiver of the right to a jury trial, but do not state that Holbrook personally waived that right. Indeed, the minutes state that he was not present.[1] The case was then reassigned to Judge Melinda J. Lasater, who conducted the court trial that day. Holbrook was present at the proceedings before Judge Lasater, but his waiver was never obtained. We accordingly reverse the judgment in SCD 195927.
B. SCD 187211 Must be Remanded for Correction of the Abstract of Judgment and Minutes
Holbrook contends in SCD 187211, the eight-year sentence is contrary to law because (a) the court did not orally pronounce judgment and (b) the strike was dismissed in April 2005. The People argue that the court pronounced a two-year sentence, which did not encompass the strike, and the abstract of judgment and the minute order should be corrected accordingly.
The reporter's transcript of the August 2006 sentencing hearing shows that the court did in fact pronounce sentence, choosing the middle term, and running it concurrently with the sentence in SCD 195927, but not stating the specific length of the term. The middle term for possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)) is two years (Pen. Code, 18). As Holbrook points out, the strike was dismissed in April 2005,[2]and the minutes and abstract of judgment incorrectly reflect a sentence encompassing the strike. We remand for the trial court to correct the abstract of judgment and minutes to delete references to the strike.
DISPOSITION
The judgment in SCD 195927 is reversed. The judgment in SCD 187211 is affirmed and the case is remanded to the trial court so that it may correct the abstract of judgment and minutes to delete references to the strike. The court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
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[1] This hearing was unreported.
[2] There is no mention of the strike in the August 2006 reporter's transcript.
