Opinion
B227076
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. LAVANCE MCNAIR, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA083700) THE COURT:
BOREN, P.J., ASHMANN-GERST, J., CHAVEZ, J.
Defendant and appellant, Lavance McNair, appeals from the judgment entered after his conviction of unlawfully driving or taking an automobile. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On May 31, 2011, we notified defendant of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. Defendant was then granted a continuance to August 1, 2011. That time has elapsed, and defendant has submitted no brief or letter. We have reviewed the entire record, and find an error in the pronouncement of sentence. We therefore reverse and remand for resentencing only. Finding no other arguable issues, we otherwise affirm the judgment.
After a preliminary hearing, defendant was charged by information with two felony counts arising from a single incident during a sting operation in which defendant drove an unmarked 2000 Toyota Camry belonging to the Sheriff's Department. Count 1 alleged a violation of Vehicle Code section 10851, subdivision (a), unlawfully driving or taking the car. Count 2 alleged a violation of Penal Code section 666.5, the unlawful driving or taking the car, with a prior conviction of a violation of Vehicle Code section 10851.
All further statutory references are to the Penal Code, unless otherwise indicated.
In addition, the information alleged pursuant to section 667.5, subdivision (b), that defendant had suffered 12 prior convictions for which he served prison terms, and had not remained free of prison custody for five years prior to the commission of the current offenses. The information alleged for purposes of section 1203, subdivision (e)(4), that defendant had been convicted of two prior felonies.
Defendant, represented by a deputy public defender, was arraigned March 1, 2010, and pled not guilty to both counts. On March 30, 2010, defendant asked the court to appoint new counsel. The court held a Marsden hearing outside the presence of the prosecutor, allowing the defendant to state his reasons for requesting new counsel. The court then denied the request, and defendant asked to represent himself. The court advised defendant of the risks of self-representation and advised him against it, but once it appeared that defendant understood the risks of and had sufficient experience to proceed in pro. per., the court granted the motion.
See People v. Marsden (1970) 2 Cal.3d 118, 123-125.
Thereafter, the trial court granted defendant's requests for discovery and a continuance, scheduling trial for July 30, 2010. On the day set for trial, defendant moved for another continuance. Three days later, as trial trailed, defendant filed a motion to disqualify the judge, pursuant to Code of Civil Procedure section 170.6. When the court denied the motion as untimely, defendant asked to withdraw his pro. per. status. The trial court denied this motion as untimely, as well, and jury trial commenced.
The evidence showed that defendant had been caught in a sting operation during which keys were left in a car with the motor running. While law enforcement officers observed, defendant drove the car without consent, and was soon stopped and arrested. The events were caught on video, which was played for the jury.
The prosecution presented a certified record of defendant's prior conviction of Vehicle Code section 10851. A fingerprint specialist testified that the fingerprints in the record matched those she had taken from defendant.
Defendant did not testify or present witnesses in his defense. He relied upon a defense of entrapment. Accordingly, among other instructions, the trial court read to the jury CALJIC Nos. 4.60, 4.61, and 4.61.5, which instruct on the law of entrapment. The jury rejected the defense, and found defendant guilty of violating Vehicle Code section 10851, subdivision (a), as alleged in count 1, and Penal Code section 666.5, as alleged in count 2.
Defendant waived a jury trial regarding the alleged prior convictions, and the prosecution presented certified records and fingerprints to establish them. The trial court held that six of the prior convictions were proven.
Despite discussion of a possible section 654 issue between the trial court and the prosecutor, no specific ruling was made on that point. Instead, the trial court imposed sentence on count 2 alone, selecting the high term of four years enhanced by one year for each of the six proven prior convictions, for a total prison term of 10 years. Mandatory fines and fees as well as custody credits of 574 days were ordered. Defendant filed a timely notice of appeal.
Section 654 bars double punishment, including concurrent sentences, for a course of conduct constituting one indivisible transaction with one criminal objective. (People v. Latimer (1993) 5 Cal.4th 1203; Neal v. State of California (1960) 55 Cal.2d 11, 19.) Because counts 1 and 2 allege a single course of conduct with the same objective of unlawfully driving the Camry, the trial court should have made a ruling on this issue.
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The court did not pronounce sentence as to count 1. However, the minute order shows that the trial court imposed the upper term of three years as to count 1, to run concurrently with the term imposed as to count 2. The abstract of judgment reflects the same concurrent term of three years as to count 1.
"Judgment must be pronounced orally in the presence of the defendant, and it must reflect the court's determination of the matter before it. [Citation.]" (People v. Hartsell (1973) 34 Cal.App.3d 8, 13; see §§ 12, 1193, subd. (a).) A failure to pronounce judgment may not be corrected by an entry in the minutes or the abstract of judgment. (See People v. Prater (1977) 71 Cal.App.3d 695, 702-703; People v. Hartsell, supra, at p. 14.) The record indicates that the court neglected to impose a sentence as to count 1 or rule on the applicability of section 654. It is appropriate then to vacate the sentence and remand the matter to the trial court for resentencing. (See People v. Prater, supra, at p. 703.)
Due to counsel's compliance with the Wende procedure and our review of the record, we conclude appellant has received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
Defendant's sentence is vacated and the matter is remanded for resentencing, including a finding of the section 654 issue. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.