Filed 2/3/22 P. v. Gaitan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082666
Plaintiff and Respondent,
(Super. Ct. No. PCF358405)
v.
ANTHONY ADRIAN GAITAN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Franson, Acting P. J., Peña, J. and De Santos, J.
Anthony Adrian Gaitan (defendant) appeals from a judgment of conviction entered
upon a negotiated plea. The terms of his plea agreement called for the trial court to
“stay” a prior serious felony conviction enhancement. Although a stay of the
enhancement is reflected in the sentencing minutes and in the abstract of judgment, the
enhancement was not actually imposed or even mentioned during the oral pronouncement
of judgment.
Defendant requests a correction of the abstract and minutes to show what occurred
at sentencing. He did not obtain a certificate of probable cause for this appeal, but one is
not required for such clerical errors. However, defendant further claims the trial court
lacked authority to stay the enhancement and argues “[r]emand is required with directions
to strike the serious felony enhancement.” Although defendant is correct that staying the
enhancement was not a valid option, his argument ultimately concerns the validity of the
plea bargain and is not cognizable without a certificate of probable cause.
If the People were open to a simple correction of the abstract and minutes, the
matter would end there. However, in response to both of defendant’s claims, the People
argue the trial court’s failure to either impose or strike the enhancement resulted in an
unauthorized sentence. They seek to have the matter remanded with “[instructions] to the
trial court to impose and stay execution of the enhancement in accordance with the plea
agreement.” This effectively forces us to address defendant’s noncertificate issue.
We cannot order the trial court to impose an unauthorized sentence, i.e., to stay the
prior serious felony conviction enhancement. Nor can we alter the terms of the parties’
plea agreement without their consent by striking the enhancement ourselves or ordering
the trial court to strike it. The parties are unwilling to consent to a modification of the
judgment. Both sides have identified errors in the judgment and both sides want to have
the matter remanded, albeit for misguided reasons. Therefore, despite the evident waste
of judicial resources, we reverse the judgment and remand the cause for further
proceedings.
2.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was identified through DNA evidence as the perpetrator of a residential
burglary during which a female victim was sexually assaulted and robbed. As of January
2020, following a preliminary hearing and amendments to the charging information,
defendant was facing eight felony counts: kidnapping to commit rape (Pen.1 Code,
§ 209, subd. (b)(1); count 1); kidnapping to commit robbery (count 2); first degree
burglary (§§ 459, 460; count 3); assault with intent to commit rape and other sex crimes
(§ 220, subd. (a)(1); count 4); second degree robbery (§§ 211, 212.5; count 5); attempted
rape by means of force or fear (§§ 261, subd. (a)(2), 664; count 6); assault with force
likely to produce great bodily injury (§ 245, subd. (a)(4); count 7); and aggravated false
imprisonment (§§ 236, 237, subd. (a); count 8). Defendant was also charged with
misdemeanor sexual battery (§ 243.4, subd. (e)(1); count 9), and he was alleged to have
suffered a prior strike and a prior serious felony conviction (§§ 667, subds. (a)(1), (b)–(i),
1170.12).
During a pretrial conference, the parties reached a plea agreement. The basic
terms called for convictions on three counts, true findings on the recidivism allegations, a
stipulated prison sentence of 22 years, and dismissal of the remaining charges. As to
count 1, defendant pleaded no contest to an amended charge of sexual assault in violation
of section 220, subdivision (a). As to counts 3 and 5, defendant pleaded guilty as
charged.
Defendant admitted the truth of the prior strike and prior serious felony conviction
allegations. Regarding the latter allegation, the prosecutor noted on the record, “[W]e are
staying the [nickel] and not asking for the Court to impose that [nickel]. So his max [for]
what he’s pleading to would be 27 years.” The trial court then told defendant, “[Y]ou’re
only getting 22 [years] because I’m going to suspend the five-year prior for the 667(a).”
1Undesignated statutory references are to the Penal Code.
3.
A handwritten notation on the corresponding minute order reads, “Court to stay PC
667(a)(1).”
On March 10, 2021, defendant was sentenced to an aggregate prison term of 22
years. The sentence was calculated using the upper term of six years for count 1, doubled
to 12 years because of the prior strike; a consecutive term of eight years for count 3 (the
middle term, doubled because of the prior strike); and a consecutive term of two years for
count 5 (one-third of the middle term, doubled because of the prior strike).2 At the
People’s request, the “remaining counts” were dismissed.
The prior serious felony conviction enhancement was not mentioned on the record
during sentencing. However, the corresponding minute order says, “PC667(a)(1)’s-5 yrs
stayed.” The abstract of judgment indicates a stay of punishment for “667(a)(1) x 5.”
The abstract also erroneously denotes imposition of the upper term for count 3 and the
lower term for count 5. (See fn. 2, ante.)
In April 2021, defendant filed a timely notice of appeal but did not request a
certificate of probable cause.
DISCUSSION
“The trial court is generally required to include all aspects of a judgment in its oral
pronouncement of judgment.” (People v. Leon (2020) 8 Cal.5th 831, 855.) “Any
discrepancy between the judgment as orally pronounced and as recorded in the clerk’s
minutes or abstract of judgment is presumed to be the result of clerical error. [Citation.]
2Fully consecutive sentencing on counts 1 and 3 was imposed pursuant to section 667.6,
subdivision (c). The punishment for count 3 was erroneously described as “double the
aggravated term” in the oral pronouncement of judgment and as “the upper term of FOUR (4)
years doubled” in the corresponding minute order. The upper term for first degree burglary is six
years; the middle term is four years. (§ 461, subd. (a).) Punishment for count 5 was erroneously
described in the minute order as “the lower term of ONE (1) YEAR doubled ….” Second degree
robbery is punishable by a prison term of two, three, or five years. (§ 213, subd. (a)(2).) As
stated in the reporter’s transcript, the punishment for count 5 was “one third the middle term
doubled,” i.e., “two years.”
4.
The abstract of judgment ‘does not control if different from the trial court’s oral judgment
and may not add to or modify the judgment it purports to digest or summarize.’” (Ibid.,
quoting People v. Mitchell (2001) 26 Cal.4th 181, 185.) The record of the oral
pronouncement likewise controls over the clerk’s minutes. (People v. Farell (2002) 28
Cal.4th 381, 384, fn. 2; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
“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, supra, 26 Cal.4th at p. 185.) An
appellate court may also correct the clerk’s minutes to accurately reflect what happened
at sentencing. (See People v. Zackery, supra, 147 Cal.App.4th at pp. 386–388.) Pursuant
to these authorities, defendant is entitled to have the minutes and the abstract corrected to
delete all refences to the purported stay of punishment for the section 667 enhancement.
(Cf. People v. El (2021) 65 Cal.App.5th 963, 967 [“If the clerk includes fines in the
court’s minutes or the abstract of judgment that were not part of the oral pronouncement
of sentence, those fines must be stricken from the minutes and the abstract of
judgment”].)
Defendant argues “the enhancement should have been stricken; staying it was
unauthorized.” He further contends “[r]emand is required with directions to strike the
serious felony enhancement.” In other words, defendant is asking for more than a simple
correction of the clerk’s minutes and the abstract.
A defendant seeking to appeal from a plea of guilty or no contest is generally
required to obtain a certificate of probable cause. (§ 1237.5; People v. Mendez (1999) 19
Cal.4th 1084, 1088.) “[A] defendant may obtain review solely of so-called
‘noncertificate’ issues, that is, postplea questions not challenging his plea’s validity … if
he has complied with [the California Rules of Court]—which require[] him to file in the
superior court a notice of appeal stating noncertificate grounds within 60 days after
rendition of judgment.” (Mendez, at p. 1088.) “‘[T]he critical inquiry is whether a
5.
challenge to the sentence is in substance a challenge to the validity of the plea, thus
rendering the appeal subject to the requirements of section 1237.5.’” (People v. Buttram
(2003) 30 Cal.4th 773, 782.)
Although the sentencing minutes and abstract of judgment are inconsistent with
the oral pronouncement of judgment, they accurately reflect the terms of the plea
agreement. While parts of defendant’s briefing purport to seek a correction of the
minutes and abstract, he is essentially challenging the validity of his plea. Such
challenges require a certificate of probable cause. (People v. Buttram, supra, 30 Cal.4th
at pp. 781–782; cf. People v. Preciado (1978) 78 Cal.App.3d 144, 147–149 [no
certificate required where appeal was based on trial court’s failure to effectuate an invalid
plea bargain].) Defendant’s challenge is also barred by “the long-standing rule that
‘defendants are estopped from complaining of sentences to which they agreed.’”
(Buttram, at p. 783, quoting People v. Hester (2000) 22 Cal.4th 290, 295.) This principle
of estoppel is distinct from the rules of waiver and forfeiture. (See People v. Flood
(2003) 108 Cal.App.4th 504, 508.)
A mere discrepancy in the minutes and abstract is a noncertificate issue. By
raising this issue, defendant has opened the door to the People’s argument that “the trial
court’s failure to dispose of the prior serious felony enhancement in accordance with the
plea agreement was legally unauthorized, and the case should be remanded so that the
court may impose and stay the sentence on the five-year prior.” In his reply brief,
defendant alleges the People forfeited their argument by failing to object at the time of
sentencing. We must disagree. “[F]ashioning a sentence in a manner which is
unauthorized by law exceeds the jurisdiction of the court and may be the subject of later
review even though no objection was made in the trial court.” (People v. Mustafaa
(1994) 22 Cal.App.4th 1305, 1311; accord, People v. Scott (1994) 9 Cal.4th 331, 354.)
“It is immaterial that the People failed to appeal because ‘once [a defendant] lays his
6.
cause at an appellate doorstep he subjects himself to thorough scrutiny of the proceedings
below.’” (People v. Iniguez (2002) 96 Cal.App.4th 75, 80.)
As stated in People v. Bradley (1998) 64 Cal.App.4th 386, upon which the People
rely, “The failure to impose or strike an enhancement is a legally unauthorized sentence
subject to correction for the first time on appeal.” (Id. at p. 391.) The People also
characterize the trial court’s failure to impose and stay the section 667 enhancement as “a
direct violation of the plea agreement.” They are correct. “When the plea is accepted by
the prosecuting attorney in open court and is approved by the court, … the court may not
proceed as to the plea other than as specified in the plea.” (§ 1192.5, subd. (b).)
The trial court’s “failure either to state that it was striking the enhancement or to
impose it was ‘analogous to a failure to pronounce sentence on all counts, which is the
type of unauthorized sentence that can be corrected by remand on the defendant’s
appeal.’” (People v. Irvin (1991) 230 Cal.App.3d 180, 192.) However, the People are
not entitled to an order directing the trial court to impose and stay the prior serious felony
conviction enhancement. “Even if a defendant, the prosecutor and the court agree on a
sentence, the court cannot give effect to it if it is not authorized by law.” (People v.
Jackson (1981) 121 Cal.App.3d 862, 869; accord, In re Williams (2000) 83 Cal.App.4th
936, 944 [“A plea bargain that purports to authorize the court to exercise a power it does
not have is unlawful and may not be enforced”].)
Prior to January 1, 2019, trial courts were required to impose a properly pleaded
and proven enhancement under section 667, subdivision (a)(1). (People v. Jordan (2006)
141 Cal.App.4th 309, 319.) By enactment of Senate Bill No. 1393 (2017–2018 Reg.
Sess.), the law was changed to provide trial courts with discretion to dismiss such
enhancements, or to strike the punishment therefor, “in the furtherance of justice.”
(§ 1385, subd. (b).) A more recent amendment requires trial courts to dismiss an
enhancement “if it is in the furtherance of justice to do so, except if dismissal of that
7.
enhancement is prohibited by any initiative statute.” (Id., subd. (c)(1).) But even the
current version of section 1385 does not authorize the stay of a sentencing enhancement.
“[S]triking an enhancement and staying an enhancement are not the same thing.”
(People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123.) “A stay is a temporary
suspension of a procedure in a case until the happening of a defined contingency.”
(People v. Santana (1986) 182 Cal.App.3d 185, 190.) “In contrast, a striking is an
unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes
of a specific proceeding. [Citation.] It is tantamount to a dismissal. In particular, the
striking of an enhancement implies that the enhancement is legally insupportable, and
must be dismissed in furtherance of justice.” (Ibid., fn. omitted.)
“Unless a statute says otherwise, an enhancement may be imposed or stricken ….
[Citation.] Imposition of sentence on an enhancement may not be stayed; to do so is an
illegal sentence.” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; accord, People
v. Lopez (2004) 119 Cal.App.4th 355, 364.) “[T]he only authority for staying an
enhancement is California Rules of Court, rule 4.447, which applies when ‘an
enhancement that otherwise would have to be either imposed or stricken is barred by an
overriding statutory prohibition. In that situation—and that situation only—the trial court
can and should stay the enhancement.’” (People v. Bay (2019) 40 Cal.App.5th 126, 139.)
In short, the remedy sought by the People is unavailable. (See People v. Brown
(2007) 147 Cal.App.4th 1213, 1224 [“specific performance is not an available remedy
when the negotiated sentence is invalid or unauthorized”].) Given the People’s position
on appeal, we cannot order the subject enhancement stricken because a court “‘may not
proceed as to the plea other than as specified in the plea’ without the consent of the
parties.” (People v. Stamps (2020) 9 Cal.5th 685, 704, quoting § 1192.5, subd. (b).) At
this juncture, the only option is to “‘“restore the parties to the status quo ante.”’”
(Stamps, at p. 707; People v. Barton (2020) 52 Cal.App.5th 1145, 1159.) On remand, the
8.
parties may enter into a new plea agreement (e.g., one calling for the enhancement to be
stricken) or they may proceed to trial on reinstated charges. (See Barton, at p. 1159.)
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings
consistent with this opinion.
9.