People v. Frazier CA3 ( 2015 )

Filed 4/22/15 P. v. Frazier CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C076724
Plaintiff and Respondent, (Super. Ct. No. 13F6560)
v.
ROBERT LYLE FRAZIER,
Defendant and Appellant.
In December 2013 the People charged defendant Robert Lyle Frazier with
unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)),1 dissuading a witness by
force or threat (§ 136.1, subd. (c)(1)), and five counts of providing lewd material to a
minor (§ 288.2, subd. (a)(1)). The People also alleged defendant was previously
convicted of a strike offense (§ 1170.12) and a serious felony (§ 667, subd. (a)(1)),
1 Undesignated statutory references are to the Penal Code.
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previously served a term in prison (§ 667.5, subd. (b)), and committed one of his offenses
while out on bond (§ 12022.1).
In April 2014 defendant pleaded no contest to unlawful sexual intercourse and
admitted his prior strike conviction. In exchange, the remaining charges and allegations
were dismissed; the People agreed defendant would serve a stipulated term of six years in
state prison. Defendant was later sentenced in accordance with his plea agreement:
“The Court: In line with the agreement you entered, Mr. Frazier, I’ll deny
probation. I will impose the agreed upon six years state prison sentence. That number is
achieved by imposing on Count One, a three year sentence and double it on your strike
conviction.”
Defendant appeals, without a certificate of probable cause. On appeal, he
contends “remand is necessary for resentencing because it is unclear from the record
whether [defendant’s] sentence was intended to be the midterm or the aggravated term.”
Defendant acknowledges he agreed to a stipulated term of six years but notes that both
the minutes and the abstract of judgment reflect the six-year term yet indicate the
“midterm” was imposed. Defendant’s contention is frivolous.
“ ‘Rendition of judgment is an oral pronouncement.’ Entering the judgment in the
minutes being a clerical function [citation], a discrepancy between the judgment as orally
pronounced and as entered in the minutes is presumably the result of clerical error. Nor
is the abstract of judgment controlling. ‘The abstract of judgment is not the judgment of
conviction. By its very nature, definition and terms [citation] it cannot add to or modify
the judgment which it purports to digest or summarize.’ [Citation.]” (People v. Mesa
(1975) 14 Cal. 3d 466, 471; see also People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
In the trial court, defendant acknowledged the aggregate six-year term on the
record and the court imposed that same term on the record: three years for unlawful
sexual intercourse, doubled for the prior strike. A three-year term for unlawful
intercourse is the upper term; two years in the midterm. (§§ 261.5, subd. (c), 1170,
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subd. (h).) Accordingly, any indication in the minutes or the abstract of judgment that
defendant was sentenced to the midterm for his conviction was nothing more than a
clerical error. Indeed, the record includes an amended abstract of judgment, filed in the
trial court on June 20, 2014, that accurately reflects the trial court imposed the upper
term, doubled for the prior strike.
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
BUTZ , J.
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