Opinion
H042583
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. DANNY REY BOSQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1244975)
In accord with a plea agreement, defendant Danny Rey Bosquez pleaded no contest to assault with a firearm; assault by means of force likely to produce great bodily injury; second degree robbery; carrying a loaded firearm; battery for the benefit of a street gang; and attempting to dissuade a witness. He also admitted gang and firearm enhancements, and he admitted he had been released from custody on bail at the time of the offenses. The trial court imposed a total term of 10 years eight months as contemplated by the plea agreement.
Bosquez raises two claims on appeal. First, he contends we must vacate his conviction for carrying a loaded firearm because the transcript of the plea hearing shows he never pleaded guilty or no contest to this count. We conclude this claim is without merit because, among other things, Bosquez filed a sworn declaration stating he entered a plea of no contest in open court. Second, Bosquez requests we correct a clerical error in the abstract of judgment. The Attorney General concedes this point, and we accept the concession.
In his opening brief, Bosquez raised a third claim challenging the calculation of credits for time served, but he withdrew the claim in his reply brief.
We will affirm the judgment and order the trial court to correct the abstract of judgment.
I. BACKGROUND
The facts of the offenses are immaterial to this appeal. The prosecution charged Bosquez and multiple codefendants with eight counts in a second amended and consolidated felony complaint. Bosquez was charged as follows: Count 1—assault with a firearm (Pen. Code, § 245, subd. (a)(2)); count 2—assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 3—robbery in the second degree (§§ 211, 212.5, subd. (c)); count 4—possession of a dirk or dagger (§ 21310); count 5—carrying a loaded firearm on the person or in a vehicle (§ 25850, subd. (a)); counts 6 and 7—battery for the benefit of a street gang (§§ 242, 243, subd. (a)); and count 8—attempting to dissuade a victim or witness from prosecuting a crime (§ 136.1, subd. (b)(2)). As to counts 1, 2, 3, and 8, the prosecution alleged Bosquez committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subds. (b)(1)(A), (b)(1)(B), & (b)(1)(C).) As to counts 1 and 3, the prosecution alleged Bosquez personally used a firearm in the commission of the offenses. (§ 12022.5, subd. (a).) The prosecution further alleged Bosquez had been released from custody on bail when he committed the offenses charged in counts 1 through 3. (§ 12022.1.)
Subsequent undesignated statutory references are to the Penal Code.
On May 21, 2014, the parties entered a plea agreement whereby Bosquez agreed to plead no contest to counts 1, 2, 3, 5, 6, 7, and 8 in exchange for a prison term of 10 years eight months and the dismissal of count 4. Bosquez completed and signed a plea form memorializing his agreement to these terms, and he personally stated in open court that he understood and agreed to the terms outlined in the form. After a colloquy with Bosquez, the trial court found his pleas were entered freely, voluntarily, knowingly, and intelligently.
The transcript of the May 21 hearing shows Bosquez pleaded no contest to counts 1, 2, 3, 6, 7, and 8, and he admitted gang and firearm allegations as to those counts. He further admitted he had been released from custody on bail when he committed the offenses charged in counts 1 through 3. The transcript does not show that Bosquez entered a plea on count 5 (carrying a loaded firearm). The minutes of the hearing reflect the entry of a plea on count 5, but the minutes are stamped "CORRECTED MAY 24 2014." Minutes of a subsequent hearing on May 23, 2014, reflect a plea of no contest on count 5 "nunc pro tunc to 5-21-14." The May 23 minutes also reflect that defendant and his counsel were present at the hearing. However, the court reporter named on the minutes for the May 23 hearing submitted a sworn affidavit stating that "there were no proceedings held on the record on that day, with me acting as the official reporter." The record contains no settled statement memorializing the hearing.
In October 2014, counsel for Bosquez filed a motion to withdraw his plea on the grounds that he did not understand the proceedings, he had been pressured to settle, and he believed newly discovered evidence contradicted police reports in his case. The motion stated, among other things, "Mr. Bosquez resolved his matters on May 21, 2014, with Mr. Bosquez entering pleas of no contest to a total of seven charges . . . ." (Italics added.)
In December 2014, Bosquez moved to dismiss appointed counsel and proceed in propria persona. The trial court granted the motion. Bosquez then personally filed a motion to withdraw his plea. In support of the motion, Bosquez filed a signed and sworn declaration stating, among other things, "On May 21, 2014, I appeared in open court and entered a plea of nolo contendere to the offense[s] charged in counts 1, 2, 3, 5, 6, 7, 8 of the information filed in this action." The trial court denied the motion.
In April 2015, the trial court imposed a total term of 10 years eight months in accord with the plea agreement. The term on count 5 consisted of two years concurrent with the terms imposed on the remaining counts.
The trial court later granted Bosquez's request for a certificate of probable cause.
II. DISCUSSION
A. Entry of Plea on Count 5
Bosquez contends we must vacate his conviction and sentence on count 5 (carrying a loaded firearm) because he never pleaded guilty or no contest to that count in open court. He acknowledges that the minutes reflect a plea of no contest to count 5, but he points to the absence of any such plea in the reporter's transcript of the hearing held May 21, 2014. The Attorney General contends the record shows Bosquez pleaded no contest to count 5.
1. Legal Principles
"Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court." (§ 1018.) Generally, where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery).) However, "[t]he orders of the trial court are presumed to be valid and defendant has the burden of providing a record adequate to support his arguments on appeal. Where the record appears incomplete, a defendant must affirmatively show there is some consequential inaccuracy or omission to establish prejudice." (People v. Malabag (1997) 51 Cal.App.4th 1419, 1427 (Malabag).)
2. The Record Shows Bosquez Pleaded No Contest to Count 5
The Attorney General does not dispute that the transcript of the May 21, 2014 hearing shows no plea to count 5. But the Attorney General contends the minutes of the May 23, 2014 hearing show Bosquez entered a plea of no contest to count 5 nunc pro tunc. Bosquez points out that no transcript exists of that hearing either, and he contends the reporter's affidavit shows no plea was entered in open court. The Attorney General contends the absence of a reporter's transcript for the May 23 hearing may simply mean the plea was not recorded, or that the minutes incorrectly listed the reporter. The reporter's affidavit is not conclusive on this matter because the reporter stated there were no proceedings held on the record "with me acting as the official reporter." As the Attorney General notes, it is possible the reporter was absent during the proceeding. (See Malabag, supra, 51 Cal.App.4th at p. 1423 ["it could be the reporter was simply absent during a portion of the proceedings"].) Thus, although the oral pronouncement generally controls if it conflicts with the minutes of the hearing, the record here does not show a conflict between the two sources; rather, the record appears to reflect a gap in the reporter's transcripts of the oral pronouncements. Because the record is incomplete on this point, Bosquez must affirmatively show there is some consequential inaccuracy or omission. (Malabag, supra, 51 Cal.App.4th at p. 1427.)
As noted above, there is nothing in the record showing Bosquez or his counsel sought a settled statement to memorialize the hearing. (See Cal. Rules of Court, rule 8.137.)
Bosquez relies on Zackery, supra, 147 Cal.App.4th 380 [vacating sentence for count on which defendant did not enter a guilty plea]. In Zackery, the court of appeal vacated the defendant's sentence on one count because the defendant never changed his plea of not guilty to that count. Although the minutes of the hearing reflected the entry of a plea, the court of appeal struck that portion of the minutes on the ground that the oral pronouncement controlled. Bosquez contends the same rule must apply here.
This argument has some force, but Bosquez elides a critical fact distinguishing his case from Zackery: In support of his motion to withdraw his plea, Bosquez filed a sworn declaration expressly stating he appeared in open court and pleaded no contest to count 5. The Attorney General points to the declaration as conclusive evidence Bosquez entered a plea to count 5 in open court. Bosquez offers no response on this point. Bosquez is bound by the sworn statements set forth in his pleadings. (See People v. Miller (2012) 202 Cal.App.4th 1450, 1456, fn. 5 [simple estoppel generally bars a party from taking certain positions contrary to their previous actions, such as consenting to a plea agreement].) Moreover, the minutes of the May 23 hearing show Bosquez entered his plea in open court nunc pro tunc, unlike the defendant in Zackery.
We conclude the record shows Bosquez pleaded no contest to count 5 in open court as required by section 1018. This claim is therefore without merit.
B. Correction of the Abstract
Bosquez contends the abstract of judgment contains a clerical error requiring correction. At the sentencing hearing, the trial court orally ordered restitution of $5,081.22 to the victim named in count 1. The abstract of judgment incorrectly lists the amount as $5,091.22. The Attorney General concedes the error.
Our examination of the record shows the concession is well taken. We will order the abstracted corrected. "Courts may correct clerical errors at any time, and appellate courts . . . have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 184.)
III. DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect a restitution order of $5,081.22 consistent with the oral pronouncement of April 7, 2015.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.