Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F08903972, Jeffrey Bird, Commissioner.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Defendant Gustavo Armenta appeals his sentence, arguing that the trial court erred by resentencing him to a higher term after his original sentence had been formally entered. Armenta also requests that the minute order of April 24, 2009, be corrected; the People agree that the correction should be made. We direct the trial court to correct the minute order and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORIES
On April 24, 2009, Armenta pleaded no contest to two counts of inflicting corporal injury on his spouse. (Pen. Code, § 273.5, subd. (e).) He admitted one prior conviction, which occurred on June 16, 2006. The minute order incorrectly states that Armenta admitted two prior convictions. The court suspended imposition of sentence and placed Armenta on three years of formal probation with various terms and conditions, including the requirement that he submit to alcohol and drug testing.
A few months later, Armenta tested positive for methamphetamine. The trial court found him in violation of probation based on the positive drug test. On October 20, 2009, the court sentenced him to four years in state prison, without specifying the count or counts to which the sentence applied. Addressing Armenta, the court stated, “You’ll be committed to the Department of Corrections for the four-year middle term.…” The court stayed execution of the sentence and reinstated probation.
On November 10, 2009, the court held a hearing and resentenced Armenta. The court characterized the original sentence of October 20, 2009, as a sentence of four years on count one only. Armenta did not object and his counsel stated, “I’ve explained to the defendant that the Court failed to impose sentence on Count Two and that was why he was here today.” The court sentenced Armenta to one year four months on count two to be served consecutively, resulting in an aggregate sentence of five years four months. Execution of the sentence was again stayed.
DISCUSSION
I. Sentencing
Under the general common law rule, once a sentence is formally entered in the minutes, the trial court loses authority to increase the sentence. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1423.) “This restriction on the court’s authority to modify a sentence stems from a concern that increasing a defendant’s sentence after its formal entry in the minutes would implicate double jeopardy principles.” (Id. at pp. 1423-1424.) This rule applies where the sentence is suspended and probation is granted. (People v. Colado (1995) 32 Cal.App.4th 260, 263.)
As an exception to the general rule, however, “trial courts have authority to correct clerical errors affecting sentences as well as the obligation to correct a sentence that is unauthorized by law.” (People v. Ramirez, supra, 159 Cal.App.4th at p. 1424.)
Armenta contends that the general rule applies, and the trial court exceeded its jurisdiction and violated the double-jeopardy provision of the state and federal Constitutions when it increased his sentence on November 10, 2009. The People respond that the original sentence entered October 20, 2009, was “unauthorized by law” because the trial court failed to pronounce judgment with respect to each count. As a result, the court had the obligation to correct the sentence. Since the legality of the sentence is a pure question of law, we review the trial court’s actions de novo. (People v. Rosbury (1997) 15 Cal.4th 206, 209.)
“Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. [Citations.]” (People v. Cheffen (1969) 2 Cal.App.3d 638, 641.) In Cheffen, the defendant was convicted of five counts, but the trial court imposed sentence on only two of the counts. (Ibid.) Observing that “it was the duty of the trial judge to pronounce judgment on the [other three] counts, ” the appellate court remanded “for the purpose of the pronouncement of a judgment” on the remaining three counts. (Id. at p. 642.)
Here, similarly, the trial court was required to sentence Armenta or grant probation with respect to each of the two counts of spousal abuse. It did not do so, failing to mention either count specifically. The court stated that it was imposing the middle term, and four years is the middle term for a violation of Penal Code section 273.5, subdivision (e)(1). It follows that the court intended to impose the four-year term for a single count, and not, for example, two years for each of the two counts.
In People v. Taylor (1971) 15 Cal.App.3d 349, the defendant was convicted of two counts, but the trial court sentenced him on only one of the counts. (Id. at p. 352, fn. 2.) The appellate court remanded for resentencing, which resulted in greater punishment. (Id. at p. 351.) On appeal from the resentencing, the defendant argued that the trial court lacked jurisdiction to resentence him. (Id. at p. 352.) The court rejected this argument, holding, “the trial court has power to correct the error and give a proper sentence.” (Id. at p. 353.) The Taylor court also held that the trial court’s inadvertent sentencing error “may be corrected without placing defendant in double jeopardy.” (Id. at p. 354.)
Likewise, here, the trial court had the power to “correct the error” of failing to sentence on each count and “give a proper sentence, ” as it did on November 10, 2009. Armenta attempts to distinguish People v. Taylor because, in that case, the initial sentence was incomplete—the trial court imposed a sentence as to one count and was silent on the other count. In the present case, Armenta argues, the sentence should be presumed to be complete. He asserts that the sentence must be viewed as a four-year term on one of the counts, execution of which was suspended, and a suspension of imposition of sentence pursuant to the grant of probation for the other count. Armenta offers no authority for the assertion that the sentence must be interpreted in this manner, however, and logic does not require this interpretation. The more natural, unstrained interpretation is that the court imposed the middle term for one violation of Penal Code section 273.5, subdivision (e), and overlooked the other count, just as in Taylor.
In any event, as the People point out, it is obvious that the trial court did not intend to suspend imposition of sentence with respect to one of the counts. The record shows that the court convened a second hearing to correct an error in its original sentencing (failing to impose any sentence on count two), not because it had a change of heart. At the second hearing, defense counsel acknowledged that the court had failed to impose sentence on count two. The court then sentenced Armenta on count two. We will not interpret the October 20, 2009, sentence to mean something the trial court clearly did not intend to do.
Since the sentence imposed in the first hearing included neither a sentence nor probation for one of the counts, it was unauthorized. (People v. Cheffen, supra, 2 Cal.App.3d at p. 641 [trial court has no discretion not to impose sentence or grant probation].) As a result, the trial court had jurisdiction to correct the sentence at the second hearing, and there was no double-jeopardy violation. (People v. Taylor, supra, 15 Cal.App.3d at pp. 353-354.)
II. Minute order correction
When Armenta pleaded no contest, he admitted one prior conviction. The minute order, however, states that he “admits priors.” The People agree with Armenta that the minute order should be corrected. We direct the court to amend the minute order dated April 24, 2009, to reflect that Armenta admitted only one prior conviction. (People v. Zackery (2007) 147 Cal.App.4th 380, 386.)
DISPOSITION
The trial court shall correct the minute order dated April 24, 2009, to reflect that Armenta admitted only one prior conviction. In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, J., Poochigian, J.