People v. Burns CA5 ( 2021 )

Filed 4/9/21 P. v. Burns CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080032
Plaintiff and Respondent,
(Super. Ct. Nos. VCM341757,
v. VCF352578)
LARRY WELDON BURNS,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Poochigian, J. and Meehan, J.
Defendant Larry Weldon Burns pled no contest to offenses in Tulare County
Superior Court case Nos. VCM341757 and VCF352578 on the same date. The trial court
inadvertently sentenced defendant twice on case No. VCM341757 to slightly different
terms of probation. On appeal, he contends that (1) the second sentence was void and
(2) the minute order regarding his sentence incorrectly reflects the court’s oral
pronouncement of judgment. The People agree, as do we. We strike the sentence
pronounced on September 19, 2019, in case No. VCM341757 and direct the trial court to
prepare a minute order reflecting the correct sentence as orally pronounced on August 2,
2018. As modified, we affirm.
PROCEDURAL SUMMARY
On September 30, 2016, the Tulare County District Attorney charged defendant in
case No. VCF341757 with felony vandalism (Pen. Code, § 594, subd. (a)).1
On July 3, 2017, the Tulare County District Attorney charged defendant in case
No. VCF352578 with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1),
possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), possession of a
controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3),
having a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 4), misdemeanor
possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377,
subd, (a); count 5), misdemeanor possession of a controlled substance, hydrocodone
(Health & Saf. Code, § 11350, subd. (a); count 6), and misdemeanor disobeying a court
order (§ 166, subd. (a)(4); count 7). The amended complaint further alleged, as to
counts 1 through 4, that defendant had served three prior prison terms (§ 667.5, subd. (b))
and was on bail at the time of the offenses (§ 12022.1).
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On August 2, 2018, defendant pled no contest to misdemeanor vandalism (§§ 17,
subd. (b), 594, subd. (a)) in case No. VCM3417572 and no contest to count 3 in case
No. VCF352578. In exchange for his plea, the court indicated a sentence of four years,
suspended except for 365 days of local jail time.
On the same date, the trial court sentenced defendant on the misdemeanor
vandalism count of case No. VCM341757 to a three-year term of probation with credit
for one day of jail served.3 Defendant was further ordered to pay restitution in the
amount of $724.65 and pay various fees and fines.
On September 19, 2019, on count 3 of case No. VCF352578, the trial court
sentenced defendant to a term of four years. Execution of the sentence was suspended for
three years, which was fixed as a term of probation. The conditions of probation
included serving 365 days in local jail and various fines and fees. The trial court then
sentenced defendant in case No. VCM341757—for the second time—to three years of
probation. The conditions of probation included serving 60 days in jail, paying
restitution in an undetermined amount, and paying various fees and fines.
Defendant filed a notice of appeal on September 20, 2019.
DISCUSSION4
The parties agree, as do we, that (1) the second sentence imposed in case
No. VCM341757 is void because the trial court no longer had jurisdiction over the case
and (2) the abstract of judgment must be corrected because it is inconsistent with the trial
court’s oral pronouncement of sentence.
2 Because defendant was initially charged with a felony, the case number was
originally VCF341757. The case number was later changed to VCM341757.
3 Inconsistent with the trial court’s oral pronouncement, the minute order reflects
that the trial court imposed a 30-day jail term.
4 Because defendant raises only sentencing issues, the facts underlying the offenses
are not relevant and are omitted from this opinion.
3.
As to the first issue, generally, “a trial court is deprived of jurisdiction to
resentence a criminal defendant once execution of the sentence has commenced.”
(People v. Karaman (1992) 4 Cal.4th 335, 344; accord, People v. Torres (2020) 44
Cal.App.5th 1081, 1084 (Torres).)5 Execution of a judgment of probation commences
when the sentence is pronounced and a copy of the probationary order is furnished to the
probation officer. (See § 1213, subd. (a).)
As the parties agree, the execution of defendant’s sentence commenced on
August 2, 2018, when the trial court pronounced defendant’s sentence and a minute order
of that pronouncement was filed with the court. Therefore, on September 19, 2019, the
trial court lacked jurisdiction to sentence defendant on case No. VCM341757 and the
sentence pronounced on that date with regard to the misdemeanor vandalism count was
void and will be stricken.
Second, the parties agree that the minute order issued on August 2, 2018,
incorrectly reflects the trial court’s oral pronouncement of sentence. On case
No. VCM341757, as a condition of probation, the trial court imposed one day of jail time
with credit for one day of jail time served. The minute order reflecting the sentence
erroneously indicates that the trial court sentenced defendant to jail for 30 days with
credit for one day. When a discrepancy exists between a trial court’s oral pronouncement
of judgment and the minute order, the oral pronouncement controls. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) We may correct a clerical error in recording the judgment at
5 “There are exceptions to the general rule. A court may recall a sentence and
resentence a defendant under certain circumstances within 120 days of the defendant’s
custody commitment. (§ 1170, subd. (d)(1).) Resentencing is also authorized under the
circumstances specified in sections 1170.126, 1170.18, and 1170.95. Courts may correct
computational and clerical errors at any time. [Citation.] Unauthorized sentences and
‘ “ ‘obvious legal errors at sentencing that are correctable without referring to factual
findings in the record or remanding for further findings’ ” ’ are correctable at any time.”
(Torres, supra, 44 Cal.App.5th at p. 1085.) However, none of those exceptions permitted
the trial court’s second sentencing in this case.
4.
any time. (Ibid.; Torres, supra, 44 Cal.App.5th at p. 1085.) We therefore direct the trial
court to issue an amended minute order that correctly reflects the sentence on case
No. VCM341757—a three-year term of probation, with one day in jail with credit for
time served, restitution in the amount of $724.65, a restitution fine in the amount of $160,
a court operations fee of $40, and a conviction fee of $30.
DISPOSITION
The sentence in case No. VCM341757 pronounced on September 19, 2019, is void
and is hereby stricken. The trial court is directed to prepare an amended minute order
correctly reflecting the sentence as orally pronounced on August 2, 2018. As modified,
the judgment is affirmed.
5.