Opinion
E041030
6-6-2007
THE PEOPLE, Plaintiff and Respondent, v. VONDETRICK CARR, Defendant and Appellant.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
Pursuant to our directions in a prior appeal, a new sentencing hearing was held and defendant was resentenced. In this appeal, he contends that the court erred in denying his request to continue the sentencing hearing, and that a clerical error in the abstract of judgment must be corrected. We reject defendants first contention and agree with the second.
II. SUMMARY OF RELEVANT FACTS
Defendant was convicted of second degree murder (Pen. Code, § 187) and other crimes. (People v. Carr (Mar. 3, 2006, E037157) [nonpub. opn.], [pp. 1-2] (Carr I).) In a bifurcated trial, the court found true allegations of four prison priors (Pen. Code, § 667.5, subd. (b)) and a prior strike for purposes of the "Three Strikes" law (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). (Carr I, supra, [at p. 2].) Defendant was sentenced to a total of 44 years to life. (Ibid.)
Defendant requests that we take judicial notice of our prior opinion. We grant the request. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In defendants first appeal, he claimed that evidence of certain prior acts by defendant should not have been introduced at trial, certain family members of the victim committed prejudicial spectator misconduct, and that actions by the prosecutor constituted misconduct. Defendant did not challenge the courts true finding on the prior strike allegation.
We affirmed the conviction. (Carr I, supra, [at p. 39].) However, we agreed with the People that certain sentencing errors required a new sentencing hearing. In particular, we held that the sentencing court erroneously failed to designate a principal term for the determinate portion of the sentence. (Id. [at pp. 37-38].) We further held that the abstract of judgment erroneously described the second degree murder conviction as "1st MURDER." (Id. [at p. 38].)
Our disposition stated: "The judgment is affirmed. The trial court is instructed to hold a new sentencing hearing during which it shall designate a principal determinate term and recalculate the total determinate sentence. The trial court shall further direct that an amended abstract of judgment be prepared to reflect that the conviction on count 1 is for second degree murder and that it otherwise accurately reflects the sentence. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections [and Rehabilitation]." (Carr I, supra, [at p. 39].)
Following remand, the trial court held the new sentencing hearing. At the outset of the hearing, the following colloquy took place:
"[DEFENSE COUNSEL]: In talking with [defendant], . . . he had made me aware about his prior and perhaps the validity of it. I dont recall what work I did — this was about a year and a half or two years ago, so I dont recall if I looked into that prior — but as I understand, we did a court trial on the prior. [¶] So it would be [defendants] request to ask to continue the sentencing so that I may look into his prior. . . .
"THE COURT: People?
"[PROSECUTOR]: People presented evidence. The Court made a finding on his priors, Your Honor.
"THE COURT: As you have indicated, [defense counsel], this wasnt an admission. It was a court trial. And there was evidence put forward. And I found beyond a reasonable doubt that, in fact, it was true. So I am going to deny your request to put the matter over."
The court then proceeded to sentence defendant. In accordance with our directions, the court designated a principal determinate term and recalculated the total determinate sentence. The recalculated sentence is 51 years 4 months to life.
Contrary to our directions, the new abstract of judgment again misstates the degree of murder for which defendant was convicted — this time as "1st DEGREE MURDER."
III. ANALYSIS
A. Denial of Continuance
"A continuance will be granted for good cause [citation], and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) Defendant bears the burden of showing that the denial of a request for a continuance was an abuse of discretion and prejudiced the defendant. (People v. Panah (2005) 35 Cal.4th 395, 423.)
Here, defendants request for a continuance was made, so far as we can discern from the record, to allow time for defendants counsel to investigate the "validity" of defendants prior strike. Such an investigation, however, could not aid defendant because any challenge to the trial courts prior adjudication of the strike allegation was beyond the scope of the remand.
An appellate court may reverse the penalty portion of a judgment without affecting the finality of the adjudication of guilt, and direct the trial court to resentence the defendant. (People v. Green (1956) 47 Cal.2d 209, 235, overruled on another ground in People v. Morse (1964) 60 Cal.2d 631, 648-649; People v. Pineda (1967) 253 Cal.App.2d 443, 451; Pen. Code, § 1260.) "On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions." (People v. Oppenheimer (1965) 236 Cal.App.2d 863, 865-866; see also People v. Smyers (1969) 2 Cal.App.3d 666, 668-669.) "To permit a new attack on the conviction in the trial court is to grant the trial court the unwarranted power to rehear a decision of the appellate court." (People v. Pineda, supra, at p. 451.)
Here, the trial court found, following a trial on the issue, that the prior strike allegation was true. The courts determination on that point was not challenged in the first appeal and was unaffected by our opinion. We affirmed the conviction, including, implicitly, the strike determination, and directed the trial court to "hold a new sentencing hearing during which it shall designate a principal determinate term and recalculate the total determinate sentence." Our directions plainly do not permit a new trial on the prior strike conviction allegation, or other challenge to the validity of the prior conviction. Because the prior strike conviction could not be challenged within the limited sentencing hearing contemplated by our disposition, a continuance to allow counsel to investigate the validity of the prior strike would have served no purpose. Accordingly, the court did not abuse its discretion in denying the request.
Our holding does not, of course, preclude defendant from challenging the "validity" of the prior conviction by a petition for writ of habeas corpus or other means. (See, e.g., In re Spencer (1965) 63 Cal.2d 400, 404; Quintor v. Municipal Court (1982) 133 Cal.App.3d 980, 984, fn. 3.)
Defendant suggests that, even if the prior conviction is valid, a continuance may have given counsel time to discover information about the prior conviction that would justify the exercise of the courts power to strike the prior conviction allegation. (See Pen. Code, § 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-531; People v. Wallace (2004) 33 Cal.4th 738, 748.) Even if our directions on remand encompassed the possibility of striking the prior conviction allegation, there is nothing in the record that supports defendants suggestion. The argument is speculative and does not establish an abuse of discretion. (See People v. Jenkins (2000) 22 Cal.4th 900, 1038; People v. Beeler (1995) 9 Cal.4th 953, 1003-1004.)
B. Failure to Correct Abstract of Judgment
In our prior opinion, we agreed with the People that the abstract of judgment erroneously described the second degree murder conviction as "1ST MURDER." Therefore, our disposition included the following direction: "The trial court shall further direct that an amended abstract of judgment be prepared to reflect that the conviction on count 1 is for second degree murder . . . ." (Carr I, supra, [at p. 39].)
Although a new abstract of judgment was prepared following the resentencing hearing, the second degree murder conviction is misdescribed as "1st DEGREE MURDER." We will instruct the trial court to correct this error.
IV. DISPOSITION
The judgment is affirmed. The trial court shall direct that an amended abstract of judgment be prepared to reflect that the conviction on count 1 is for second degree murder. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
Ramirez, P.J.
Richli, J.