Opinion
H044871
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MOISES SALCIDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS161409A, SS160165A, SS161411A, SS170573A)
Moises Salcido appeals the judgment entered in four cases sentenced together by the trial court. Salcido does not challenge his convictions but instead asserts that the trial court erred in its oral pronouncement of the sentence in one of the cases. Both Salcido and the Attorney General request corrections to the abstracts of judgment. We find no error in the sentence pronounced by the trial court and agree that the abstracts of judgment should be corrected.
I. FACTS AND PROCEDURAL BACKGROUND
The facts underlying Salcido's convictions are not relevant to his appeal. The procedural history of each of the cases, however, does bear on the requested corrections to the abstracts of judgment. For the assistance of the trial court, we label the cases according to the letters by which they are identified in the abstracts of judgment and the docket numbers assigned to them in the trial court.
Because it imposed both indeterminate and determinate sentences, the trial court prepared two abstracts of judgment. (See Judicial Council Form CR-292 [Abstract of Judgment - Prison Commitment - Indeterminate] and Judicial Council Form CR-290 [Abstract of Judgment - Determinate].)
A. Case A: SS161409A
On April 27, 2017, Salcido was convicted by a jury of attempted murder (Pen. Code, §§ 664, 187, subd. (a) (count 1)) and assault with a deadly weapon (§ 245, subd. (a)(4) (count 2)). Regarding count 1, the jury found true the allegations that Salcido committed the attempted murder willfully, deliberately, and with premeditation (§§ 664, subd. (a), 189) and that he personally used a dangerous weapon, a knife (§12022, subd. (b)(1)). Regarding counts 1 and 2, the jury found true the allegation that Salcido personally inflicted great bodily injury in the commission of the offense (§12022.7, subd. (a)).
All further statutory references are to the Penal Code.
The trial court sentenced Salcido on July 20, 2017. For the attempted premeditated murder conviction, the trial court stated that it "would impose a life sentence which allows for a minimum eligible parole date of seven years. So it's seven years to life as to Count 1." The court also imposed a three-year term for the great bodily injury enhancement and a one-year term for the dangerous weapon enhancement, "for a total sentence of 11 years to life as to Count 1." The court imposed the upper term of four years for the assault conviction (count 2), which the court stayed pursuant to section 654.
The trial court also ordered Salcido to pay fines and fees in each of the cases. Neither party alleges any errors in the fines and fees imposed. For this reason, we do not discuss them further.
B. Case B: SS161411A
On June 13, 2017, pursuant to a plea agreement, Salcido pleaded no contest to one count of inflicting corporal injury on the mother of his child (§ 273.5, subd. (a)) and admitted an allegation that he personally inflicted great bodily injury (§12022.7, subd. (e)). The parties agreed that Salcido would receive a sentence of five years' imprisonment, to be served consecutively to SS161409A (case A) and concurrently with the term imposed in SS170573A (case D). Salcido also waived "all appeal rights" as part of the plea agreement.
Neither party argues that we should consider Salcido's appellate waiver as a bar to our review. As Salcido does not challenge any substantive aspect of his conviction or sentence in SS161411A, we agree that his appellate waiver is irrelevant to our resolution of the appeal.
On July 20, 2017, the trial court sentenced Salcido to a two-year prison term for the crime of inflicting corporal injury on the mother of his child and imposed an additional three years for the great bodily injury enhancement, "for a total state prison sentence of five years." The trial court also stated that the five-year term was to run consecutively to the sentence in SS161409A (case A) and concurrently with SS170573A (case D).
C. Case C: SS160165A
On February 11, 2016, pursuant to a plea agreement, Salcido pleaded no contest to one count of inflicting corporal injury on the mother of his child. (§ 273.5, subd. (a).) On March 17, 2016, the trial court placed Salcido on formal probation for a period of three years. The trial court imposed a number of probation conditions on Salcido, including those mandated by section 1203.097, as well as gang and substance-abuse conditions. Salcido was also ordered to "obey all laws." On April 27, 2017, following Salcido's conviction in SS161409A (case A), the trial court found Salcido in violation of his probation. On July 20, 2017, the trial court sentenced Salcido to a two-year prison term for the violation of probation to run concurrently with the sentences imposed in SS161409A (case A), SS161411A (case B), and SS170573A (case D).
D. Case D: SS170573A
On June 13, 2017, pursuant to a plea agreement, Salcido pleaded no contest to one count of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) The parties agreed that Salcido would receive a sentence of two years' imprisonment, to be served consecutively to SS161409A (case A) and concurrently with the term imposed in SS161411A (case B). Salcido also waived "all appeal rights" as part of the plea agreement.
Neither party argues that we should consider Salcido's appellate waiver as a bar to our review. As Salcido does not challenge any substantive aspect of his conviction or sentence in SS170573A, we agree that his appellate waiver is irrelevant to our resolution of Salcido's appeal.
On July 20, 2017, the trial court sentenced Salcido to a two-year prison term to run consecutively to the sentence in SS161409A (case A) and concurrently with SS161411A (case B).
E. Aggregate Sentence
At the sentencing hearing on July 20, 2017, after pronouncing the sentences in each of the cases, the trial court stated that the sentence of 11 years to life in SS161409A (case A) was "consecutive to the other two sentences in [SS161411A (case B)], and also [SS170573A (case D)] for [a] total sentence of 16 years to life, with the minimum eligible parole date of 16 years."
The trial court did not mention SS160165A (case C) in this portion of the sentencing hearing.
II. DISCUSSION
A. Sentence in SS161409A
Salcido argues that the trial court erred when it sentenced him to "seven years to life" in SS161409A (case A) for his conviction of attempted premeditated murder (count 1). Salcido maintains that the only lawful sentence for this crime is an indeterminate life sentence with the possibility of parole. (§ 664, subd. (a).) Salcido acknowledges that he is subject under section 3046 to a minimum parole eligibility period of seven years but argues that the minimum parole eligibility period should not be described as a minimum sentence.
Salcido contends that the precise articulation of the sentence is important because, as it was pronounced by the trial court and as reflected on the abstract of judgment, it might "confuse" the California Department of Corrections and Rehabilitation (CDCR) such that, if section 3046 were to be amended, CDCR might not realize that the amendment would "affect [his] sentence." The Attorney General counters that the California Supreme Court in People v. Jefferson (1999) 21 Cal.4th 86 approved the practice of including the minimum term of imprisonment under section 3046 in the pronouncement of an indeterminate life sentence. (Jefferson, supra, at pp. 101-102 & fn. 3.) The Attorney General also asserts that any argument based on possible changes to section 3046 is speculative. Salcido maintains that the portion of the Jefferson decision relied upon by the Attorney General is "dicta" and "incorrect."
Salcido also challenges the trial court's statement that, because it imposed a three-year term for the great bodily injury enhancement and a one-year term for the dangerous weapon enhancement associated with count 1, Salcido's sentence on count 1 was "a total sentence of 11 years to life." The Attorney General counters that the trial court correctly added the additional four years for the enhancements on count 1 to the minimum prison term and did not commit error when it characterized Salcido's sentence on count 1 as "11 years to life."
Although Salcido did not object to the sentence on count 1 in the trial court, his challenge before this court rests upon a question of law that may be raised for the first time on appeal (People v. Smith (2001) 24 Cal.4th 849, 852) and is subject to de novo review (People v. Tua (2018) 18 Cal.App.5th 1136, 1140). The appellant has the burden of demonstrating error by the trial court. (People v. Giordano (2007) 42 Cal.4th 644, 666.)
Section 664 states that "if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 664, subd. (a).) Section 3046 clarifies the applicable minimum parole eligibility period by stating, "An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole." (§ 3046, subd. (a)(1)-(2).)
Salcido correctly asserts, pursuant to section 664, subdivision (a), that the punishment for his conviction of willful, deliberate, and premeditated attempted murder is life with the possibility of parole. However, because Salcido cannot be paroled under section 3046 until he has served "at least seven calendar years" in prison for this conviction (§ 3046, subd. (a)(1); see Jefferson, supra, 21 Cal.4th at p. 96), the trial court did not commit error when it articulated this seven-year period as a minimum sentence. In Jefferson, the Supreme Court specifically approved the trial court's articulation of the minimum prison term when pronouncing the defendant's indeterminate life sentence. "By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole. Thus, when the trial court here pronounced defendants' sentences, it properly included their minimum terms." (Jefferson, supra, at p. 101, fn. 3.)
Although the Supreme Court approved of the trial court's specification of the minimum prison term in its pronouncement of the indeterminate life sentence, the court held that the trial court erred in its calculation of the term. (Jefferson, supra, 21 Cal.4th at p. 101 & fn. 3.) --------
Salcido argues that this language from Jefferson is dicta and incorrect. However, Courts of Appeal should generally follow dicta from the Supreme Court. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.) Furthermore, we see no reason to reject the Supreme Court's conclusion in Jefferson, which is grounded in the relevant statutory texts and is persuasive in its reasoning. Courts often articulate the minimum parole eligibility period in terms of "years to life" in cases involving indeterminate life sentences. (See, e.g., People v. Caballero (2012) 55 Cal.4th 262, 265 [sentence imposed for attempted murder committed for the benefit of a criminal street gang (§§ 664, 187, subd. (a), 186.22, subd. (b)(1)(C)) expressed as "15 years to life"]; People v. Garcia (2017) 7 Cal.App.5th 941, 948 ["[T]he trial court sentenced defendant to 35 years to life as follows: seven years to life for the attempted murder, plus a consecutive term of 25 years to life for the intentional discharge of a firearm enhancement, plus a consecutive term of three years for the great bodily injury enhancement."].)
We recognize that Salcido's argument has some support in case law. For example, in People v. Wong (2018) 27 Cal.App.5th 972 [238 Cal.Rptr.3d 550, 553, fn. 4] the court stated, "We note the trial court and parties referred to the total sentence as '15 years to life' and to the base term as '7 years to life.' This usage was adopted in the appellate briefs as well. This is common shorthand to refer to a life sentence with minimum parole eligibility. However, the shorthand pronouncement is incorrect because it indicates a minimum term exists, rather than a minimum parole eligibility. . . . Thus, a more accurate statement of the sentence for attempted murder is simply 'life, plus' any determinate enhancements." (See also People v. Robinson (2014) 232 Cal.App.4th 69, 72, fn. 3 ["A term of life with the possibility of parole does not have a minimum determinate term of seven years; rather, a person sentenced to such a term first becomes eligible for parole in seven years. (§ 3046, subd. (a)(1).)"].)
Nevertheless, we are not persuaded that these statements, which do not discuss Jefferson and which are themselves dicta, establish error in Salcido's sentence. While it might be more precise to describe the minimum term of confinement under section 3046 as the minimum parole eligibility period, Salcido has not persuaded us that it was error for the trial court to characterize it as a minimum term of imprisonment. In addition, we agree with Jefferson that describing the minimum parole eligibility period as a minimum prison term accurately communicates the import of section 3046 in a straightforward way that may be more easily understood by those who are not criminal law specialists. (See Jefferson, supra, 21 Cal.4th at p. 101, fn. 3.)
Moreover, we find unconvincing Salcido's concern about the effect of hypothetical future changes in the law. If Salcido believes at some prospective date that a statutory change should apply retroactively to his sentence, it is incumbent upon him to seek relief upon that basis. (See, e.g., People v. Buycks (2018) 5 Cal.5th 857, 871 [describing the scope of relief under Proposition 47 for different categories of defendants previously convicted and the avenues by which such claims could be made]; People v. Smit (2018) 24 Cal.App.5th 596, 599 [examining defendant's contention pursuant to Proposition 64 that his concurrent conviction for attempted murder did not render him ineligible for resentencing on his conviction for possession of marijuana for sale].)
In sum, we conclude that, in section 664, subdivision (a), the Legislature has specified the duration of the period of imprisonment for attempted premeditated murder. Because under section 3046, subdivision (a)(1) Salcido must serve at least seven years before he is eligible for parole, the term for attempted premeditated murder may be pronounced as seven years to life. The trial court, therefore, did not err in its pronouncement of Salcido's sentence by describing the minimum parole eligibility period as a minimum prison term.
We also agree with the Attorney General that the trial court did not err when it articulated the "total sentence" for count 1 as "11 years to life." Section 669, subdivision (a) provides, "Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction." Therefore, the trial court correctly calculated Salcido's minimum prison sentence for count 1 by adding the minimum term of seven years for his attempted premeditated murder conviction (pursuant to section 3046, subdivision (a)(1)) to the three-year term for the great bodily injury enhancement (pursuant to section12022.7, subdivision (a)) and the one-year term for the dangerous weapon enhancement (pursuant to section 12022, subdivision (b)(1)), for a total minimum prison term of 11 years.
B. Corrections to the Abstracts of Judgment
The parties have requested corrections to the abstracts of judgment. We "may correct clerical errors at any time" and have jurisdiction to order "correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We order the trial court to make the following corrections to the abstracts of judgment.
1. Corrections to the Abstract of Judgment for the Indeterminate Term
With respect to form CR-292, the abstract of judgment for the indeterminate term, both parties request that we correct the date of conviction in SS161409A (case A), although they identify different dates as the true date of conviction. "It has been settled law for over 250 years that a person stands 'convicted' upon the return of a guilty verdict by the jury or by the entry of a plea admitting guilt." (People v. Davis (2010) 185 Cal.App.4th 998, 1001.) Therefore, the conviction date, which appears in item 1, should be changed to April 27, 2017, the date of the jury verdict. Both parties also request that we order that the boxes in item 8 be unchecked. We agree, because the check marks in the boxes in this item mistakenly assert that Salcido's sentence was entered pursuant to section 667, subdivisions (b)-(i) and section 1170.12, when, in fact, no strike prior was alleged or proved. None of the boxes in item 8 should be checked.
Although neither party makes this request, we also order that the box in item 5 be checked. This item should indicate that Salcido was sentenced to life with the possibility of parole, which conforms to the trial court's statement that it "would impose a life sentence" on Salcido. Item 5 should also state that this conviction is for count 1. Box 6(c) in item 6 is already checked in the abstract. This notation is correct, because it reflects the trial court's oral pronouncement of the sentence for count 1 that includes a minimum term.
The Attorney General also requests that we order the trial court to include in the abstract that the determinate term of imprisonment shall be served before the indeterminate term. This proposed order is consistent with the trial court's oral pronouncement that the sentence in SS161409A (case A) is consecutive to SS161411A (case B) and to SS170573A (case D). The trial court's directive, in turn, complies with section 669, subdivision (a), which states, "Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole." Therefore, the abstract should state that the determinate term of imprisonment shall be served first, and the life sentence shall be consecutive to the determinate term.
2. Corrections to the Abstract of Judgment for the Determinate Term
With respect to form CR-290, the abstract of judgment for the determinate term, the dates of conviction are incorrect in item 1 for SS161409A (case A) and for SS160165A (case C). For the reasons stated above, the date of conviction for case A should be listed as April 27, 2017 (the date of the jury verdict), and the date of conviction for case C should be listed as February 11, 2016 (the date of Salcido's plea of no contest). In addition, as with the abstract for the indeterminate term, the abstract should state that the determinate term of imprisonment shall be served first, and the life sentence shall be consecutive to the determinate term.
III. DISPOSITION
The judgments are affirmed. The trial court shall prepare amended abstracts of judgment reflecting the orders made in Part II(b), ante, and shall forward certified copies to the California Department of Corrections and Rehabilitation.
/s/_________
DANNER, J.
WE CONCUR:
/s/_________
GREENWOOD, P.J.
/s/_________
GROVER, J.