Opinion
B210239
7-13-2009
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
A jury convicted defendant and appellant defendant Lonnie James Carter (defendant) of one count of second degree commercial burglary (Pen. Code, § 459) and one count of petty theft with a prior (§ 666). On appeal, defendant argues and the People concede that the trial court erred in sentencing defendant. We agree that defendants sentence was, in several respects, unauthorized. We modify defendants sentence (1) to reflect that his sentence for burglary was enhanced with three one-year terms pursuant to section 667.5, subdivision (b), rather than section 1203, subdivision (e)(4); and (2) to stay the execution of defendants sentence on his petty theft conviction pursuant to section 654. In addition, we remand to the trial court to determine whether to impose or to strike defendants five remaining section 667.5, subdivision (b) priors. In all other respects, we affirm.
Statutory references are to the Penal Code unless stated otherwise.
BACKGROUND
A. The Crime
On the afternoon of March 18, 2008, while observed by loss prevention agents, defendant entered a Target store in Norwalk, California. Defendant proceeded to the hardware department, where he selected a box cutter from the shelf, removed it from its package and discarded the packaging. He then proceeded to the electronics department, where he selected a prepaid cell phone. He took the phone to the domestics department, where he used the blade from the box cutter to cut open the cell phones plastic packaging. He removed the cell phone and its charger from the packaging and put them in his pocket. He hid the packaging behind some items on the shelf.
While still in the domestics department, defendant looked toward one of the loss prevention agents, though they did not make eye contact. Defendant then removed the cell phone from his pocket and secreted it in the folds of a comforter on the store shelf. As he walked toward the exit, he put the cell phone charger on the end cap of a shelf containing photograph frames. Defendant left the store.
Defendant was detained by sheriffs deputies in the parking lot. Defendant identified himself to police as "Willie Williams." Police recovered the yellow plastic handle of the box cutter from defendants pocket. Defendant had no cash, credit cards or checks in his possession.
Defendant presented no evidence.
B. The Sentencing Hearing
Defendant was charged in an amended information with one count of second degree commercial burglary (§ 459) (count 2) and one count of petty theft with a prior (§ 666) (count 3). The information also alleged with respect to count 2 that defendant had served eight prior prison terms (§ 667.5, subd. (b)) and presumptively was ineligible for probation because he had two prior felony convictions (§ 1203, subd. (e)(4)). A jury convicted defendant as charged. Defendant admitted his priors.
Count 1 of the original information was dismissed on the Peoples motion prior to trial. The amended information contained no count 1. The verdict forms submitted to the jury, however, referred to counts 2 and 3 as counts 1 and 2, respectively.
At the sentencing hearing, the trial court stated, "I am going to sentence you to five years in state prison." The trial court then explained that the five-year sentence would consist of the mid terms of two years each on counts 2 and 3, for a total of four years, plus one year for defendants section 667.5, subdivision (b) prior in case number A452157. The trial court stated that it would "suspend" defendants other priors.
Defense counsel objected that defendants sentences on counts 2 and 3 would "merge." The trial court agreed, then stated, "Im going to impose a sentence wherein Im not only going to impose an additional year for the prior pursuant to Penal Code section 12023(e)(4) [f]or case number A452157, Im also going to impose two additional years. One year will be imposed for case number TA079283, a conviction sustained on June 29th, 2005. [¶] And in case number TA081378, a conviction sustained on February 2nd, 2006, I will impose the one year for all of the remaining eight priors, but those will run concurrent and, in essence, be suspended. They will run concurrent with the other three years Im imposing on the priors in those cases that I have mentioned."
The trial courts minute order summarized the sentence as follows: "The court sentences defendant to 5 years in state prison. The court selects count 2 as the base term. Mid term of 2 years. The court merges count 3, mid term 2 years with count 2. The court gives the defendant and [sic] additional 2 years pursuant to 1203(E)(4), 1 year each as to cases TA079283 and TA081387. The court also sentences defendant to one additional year pursuant 667.5(B) in case A452157. Defendant is sentenced to a total of 5 years in state prison." The abstract of judgment is consistent with the minute order.
The trial court also imposed a restitution fine of $250; a parole revocation restitution fine of $250, stayed; and two $20 court security fees, for a total of $40. Defendant was awarded 178 days of presentence credit, consisting of 119 days of actual custody and 59 days of conduct credit. Defendant timely appealed.
DISCUSSION
A. Section 654
It is unclear from the trial courts statement that counts 2 and 3 "merge" whether the trial court intended to impose concurrent sentences on counts 2 and 3 or to stay the sentence on one of the counts pursuant to section 654. The abstract of judgment indicates that the sentences were imposed concurrently. Defendant argues and the People concede that, instead, execution of defendants sentence on one of his two convictions should have been stayed pursuant to section 654.
Penal Code section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
We agree that defendants sentence on count 3 should be stayed pursuant to section 654. Because a burglary can be committed without committing a theft, theft is not a lesser included offense of burglary and a defendant can be convicted of both crimes. (People v. Parson (2008) 44 Cal.4th 332, 352.) When a burglary is committed for the purpose of committing a theft once inside the building, however, punishment for the theft offense must be stayed under section 654 because the both the theft and the burglary were undertaken with a single intent and objective. (§ 654; People v. Bernal (1994) 22 Cal.App.4th 1455, 1458; see also People v. Allen (1999) 21 Cal.4th 846, 864-865.) Here, the trial court selected the burglary count (count 2) as the base term. Accordingly, execution of defendants sentence for petty theft with a prior (count 3) must be stayed.
B. Court Security Fee on Count 3
Defendant argues, in effect, that the trial court erred by imposing a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to count 3 because execution of his sentence on that count must be stayed pursuant to section 654. As defendant recognizes, however, the court in People v. Crittle (2007) 154 Cal.App.4th 368 held to the contrary. As the court in Crittle explained, "Section 654, which prohibits multiple punishment for the same act or course of conduct and generally bars the use of a conviction for `any punitive purpose if the sentence on that conviction is stayed . . ., does not apply to a court security fee because that fee is not punishment. . . ." (Id. at p. 370; see also People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court security fee "is mandated as to `"every conviction," even if the sentence on a conviction was stayed"].) The court security fee constitutes a civil disability, not a punishment. (People v. Wallace (2004) 120 Cal.App.4th 867, 874-878; see also id. at pp. 879-880 (conc. op.) [concluding that "the current state of the law requires a conclusion that the [court security] fee" is not a punishment that, as applied in that case, violated ex post facto laws].) The trial court properly imposed a court security fee as to each of defendants two convictions.
Section 1465.8, subdivision (a)(1) provides, in relevant part: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ."
C. Prior Prison Term Enhancements
The parties agree that the trial court erred in purporting to impose two one-year prison terms pursuant to section 1203, subdivision (e)(4) rather than pursuant to section 667.5, subdivision (b). The parties also agree that the trial courts intent was to impose three prior prison term enhancements pursuant to section 667.5, subdivision (b), and that the trial court erred by purporting to "suspend" rather than strike defendants five remaining section 667.5, subdivision (b) enhancements.
As noted, the information alleged that defendant presumptively was ineligible for probation pursuant to section 1203, subdivision (e)(4). When sentencing defendant, the trial court misspoke and inadvertently referred to a nonexistent "section 12023(e)(4)," rather than to section 1203, subdivision (e)(4), which section is specified in the minute order and abstract of judgment.
We agree with the parties. Section 1203, subdivision (e)(4) does not provide for sentence enhancements, but concerns eligibility for probation. The trial courts clear intent in sentencing defendant was to fashion a five-year prison term, consisting of the mid term of two years on the substantive offense and three one-year enhancement terms for defendants prior convictions in case numbers A452157, TA 079283 and TA 0811378, which were alleged in the information as section 667.5, subdivision (b) priors. Accordingly, those three enhancements should have been imposed pursuant to section 667.5, subdivision (b), not section 1203, subdivision (e)(4).
Section 1203, subdivision (e)(4) provides: "(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
Furthermore, the trial court was required to impose or to strike the five remaining section 667.5, subdivision (b) priors; it did not have the authority to "suspend" them. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. McCray (2006) 144 Cal.App.4th 258, 267; People v. Haykel (2002) 96 Cal.App.4th 146, 151.) The trial courts failure to impose or to strike the five section 667.5, subdivision (b) enhancements was jurisdictional error resulting in an unauthorized sentence, subject to correction for the first time on appeal (People v. McCray, supra, 144 Cal.App.4th at p. 267; People v. Bradley (1998) 64 Cal.App.4th 386, 391; see also People v. Garcia (2008) 167 Cal.App.4th 1550, 1566), even if the correction results in a harsher punishment. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1254, 1256; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1041; see also People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn.1; In re Ricky H. (1981) 30 Cal.3d 176, 191.)
Defendant requests that we correct the abstract of judgment to reflect the imposition of three section 667.5, subdivision (b) enhancements and strike the five remaining enhancements. This we cannot do. When a trial court strikes an enhancement pursuant to section 1385, subdivision (a), "[t]he reasons for the dismissal must be set forth in an order entered upon the minutes." (§ 1385, subd. (a).) The trial courts minute order in this case does not state any reasons for striking the section 667.5, subdivision (b) enhancements, although it appears that the trial court intended that, in the interests of justice, the sentence should be five years. A statement of reasons in the minute order is a mandatory prerequisite to a valid dismissal under section 1385. (People v. Bonnetta (2009) 46 Cal.4th 143, 151; see People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 54; People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 135-136.) When the trial court has failed to impose or to strike a section 667.5, subdivision (b) enhancement, "[o]ur duty is to remand for the exercise of the courts discretion in compliance with the statutory mandate." (People v. Solorzano, supra, 153 Cal.App.4th at p. 1041; see also People v. McCray, supra, 144 Cal.App.4th at pp. 267.) Accordingly, we remand the matter for the trial court to determine whether to impose or to strike the remaining section 667.5, subdivision (b) enhancements, and if the latter, to state its reasons for doing so in its minute order. (People v. McCray, supra, 144 Cal.App.4th at p. 268; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589.)
D. Crime Prevention Fine
The People argue that the trial court erred by failing to impose a $10 crime prevention fine pursuant to section 1202.5, subdivision (a). Because such error is not jurisdictional, however, the People forfeited their contention by failing to object in the trial court.
Section 1202.5, subdivision (a) provides in relevant part, "In any case in which a defendant is convicted of . . . the offenses enumerated in Section . . . 459 . . ., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If the court determines that the defendant has the ability to pay all or part of the fine, the court shall set the amount to be reimbursed and order the defendant to pay that sum to the county in the manner in which the court believes reasonable and compatible with the defendants financial ability. In making a determination of whether a defendant has the ability to pay, the court shall take into account the amount of any other fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution." (Italics added.)
Imposition of a fine pursuant to section 1202.5, subdivision (a) is thus dependent on the trial courts determination of whether the defendant has the ability to pay all or part of the fine. "`Because factual issues come into play in determining whether a defendant has the ability to pay the . . . fine, the failure to impose the fine is "not correctable without considering factual issues presented by the record or remanding for additional findings." [Citation.] On a silent record, we presume the trial court determined that defendant did not have the ability to pay and thus should not be compelled to pay the fine. [Citations.]" (People v. Stewart (2004) 117 Cal.App.4th 907, 911 [section 290.3 fine]; see also People v. Walz (2008) 160 Cal.App.4th 1364, 1371 [section 290.3 fine]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [fine pursuant to Health & Saf. Code § 11372.7, subd. (b)]. )
Accordingly, if a trial court fails without explanation to impose a fine pursuant to section 1202.5, subdivision (a), that is not jurisdictional error. (See People v. Walz, supra, 160 Cal.App.4th at p. 1371; People v. Martinez, supra, 65 Cal.App.4th at p. 1517.) In this case, the trial court did not impose the fine, and the record is silent regarding the reasons why. The People did not object in the trial court to the trial courts failure to impose the fine. (See People v. Burnett (2004) 116 Cal.App.4th 257, 262; see also People v. Tillman (2000) 22 Cal.4th 300, 301-302 [Peoples failure to object forfeits assertion that trial court erred in making discretionary choice not to impose fines].) Accordingly, we presume that the trial court determined that defendant did not have the ability to pay the fine. On remand, the trial court shall not impose a fine pursuant to section 1202.5, subdivision (a). (See People v. Hanson (2000) 23 Cal.4th 355, 363 [imposition of increased fines after appeal violates double jeopardy].)
DISPOSITION
Defendants sentence is modified (1) with respect to count 2, to reflect that defendants mid term sentence of two years on the burglary charge was enhanced with three consecutive one-year terms pursuant to section 667.5, subdivision (b) (rather than section 1203, subdivision (e)(4)) for defendants prior convictions in case numbers A452157, TA079283 and TA0811378; and (2) to stay execution of defendants sentence on count 3 pursuant to section 654. We remand the matter to the trial court to determine whether to impose or to strike defendants five remaining section 667.5, subdivision (b) priors. If the trial court strikes the priors, it shall state its reasons for doing so in its minute order, as required by section 1385, subdivision (a). The clerk of the Superior Court is to prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.