Filed 12/31/19 P. v. Sandoval 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

MIGUEL MARTINEZ SANDOVAL,

Defendant and Appellant.

F079096

(Super. Ct. No. F12900335)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge.

Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Clifford E. Zall, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

 

Appellant Miguel Martinez Sandoval pled no contest to two counts of home invasion robbery (Pen. Code, § 213, subd. (a)(1)(A)/counts 1 & 2), and in count 1 admitted a principal armed with a firearm enhancement (§ 12022, subdivision (d)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 17, 2012, at approximately 5:45 a.m., Cecelia and Ramiro were in bed when they heard Octavio Angulo and Rene Bon bang several times on the front door. Ramiro dialed 911 and handed the phone to Cecelia. They went into the living room and Ramiro held the door to prevent Bon and Angulo from entering. Bon and Angulo yelled, “Fresno Police.” Believing it was the police, Ramiro backed away and got on the floor. Bon and Angulo entered wearing ski masks, dressed all in black and yelled, “Where is it? Give us the money and jewelry.” Angulo took the phone from Cecelia, pointed the gun at her head and walked her to a bedroom; Ramiro ran out of the house. Angulo and Bon yelled at Cecelia to give them money as they pointed guns at her and Angulo punched her on the right side of her face. The men then took a gold ring and two watches from Cecelia and had her lie on the ground. After Bon kicked her on her right torso, the men ransacked the bedroom and rummaged through the remainder of the house. When she thought it was safe, Cecelia called 911 on her cell phone and checked to see that her children were all right.

Meanwhile, as he ran to a fast food restaurant where he told an employee to call the police, Ramiro saw a white van with its lights on parked down the street from his house. As he waited, Ramiro saw the van drive off. Ramiro then ran back to his house and arrived there shortly before some police officers, whom he told that the suspects might still be in the house.

An officer ran to the backyard and saw Bon exit the house through a back door and run away. He was followed by Angulo, who was holding a firearm. When Angulo failed to comply with an order to stop, the officer fired, striking him seven times in the lower abdomen and legs. Bon was subsequently located in a neighboring backyard. Sandoval drove the white van and was detained shortly after leaving the scene.

On April 23, 2012, the Fresno County District Attorney filed an information that, in addition to the charges and enhancement Sandoval admitted, also charged him with an additional count of home invasion robbery (count 3), two counts of first degree burglary (§§ 459/460, subd. (a)/counts 4 & 5), possession of a short barrel shotgun (§ 33215/ count 7), being a felon in possession of a firearm (§ 29800, subd. (a)(1)/count 9), and conspiracy (§ 182, subd. (a)(1)/count 11). Counts 2, 3, 4, 5, and 11, also alleged a principal personally armed with a firearm enhancement.

On August 6, 2015, Sandoval entered his plea as noted above in exchange for a stipulated, aggregate prison term of 10 years. As stated by defense counsel, Sandoval would plead no contest to counts 1 and 2 and admit a section 12022, subdivision (d) enhancement in count 1 for an additional year so he would receive a stipulated term of 10 years (the aggravated term of nine years on count 1, a one-year arming enhancement in that count and a concurrent term on count 2).

On October 16, 2015, however, the prosecutor and defense counsel agreed that Sandoval’s plea bargain provided he would be sentenced to the middle term of six years on count 1, a two-year arming enhancement in that count and a consecutive 2-year term on count 2 (one-third the midterm of six years). The court, without objection, then imposed a 10-year term, as per the agreement of the parties. The court also imposed a restitution fine and a parole revocation fine, each in the amount of $3,000. However, Sandoval’s abstract of judgment mistakenly indicated that the court imposed a concurrent 10-year term on count 2 and a 10-year arming enhancement pursuant to section 12022.53.

At a hearing on February 22, 2019, the court stated that it had been brought to its attention that the initial plea had a glitch because “one of the enhancements was inappropriate to the facts of the case.” It also stated that counsel had suggested they redo the plea in a manner that the court could essentially impose the same sentence, except it would be a lawful sentence. Under the proposed plea, Sandoval would again plead no contest to counts 1 and 2 and in count 1, admit an arming enhancement pursuant to section 12022, subdivision (b)(1), and the court would sentence him to the aggravated term of nine years on count 1, a one-year arming enhancement in that count and a concurrent term on count 2. The court then granted defense counsel’s motion to withdraw Sandoval’s original plea and it took a new plea as noted above.

On March 22, 2019, the court sentenced Sandoval in accord with his new negotiated plea to an aggregate 10-year prison term, as noted above. It also imposed restitution and parole revocation fines of $3,900 each.

Sandoval’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Sandoval has not responded to this court’s invitation to submit additional briefing. However, on November 14, 2019, we directed the parties to brief the following issues: (1) whether the court acted in excess of its jurisdiction when it permitted Sandoval to withdraw his plea, allowed him to enter another plea, and increased the amount of Sandoval’s restitution fine and parole revocation fines from $3,000 each to $3,900 each; and (2) if so, what is the proper remedy? Having considered the briefs filed by the parties, we conclude that the court acted in excess of its jurisdiction and we will reduce Sandoval’s restitution and parole revocation fines to $3,000 each.

“[Sandoval] was formally sentenced, was remanded, and was surrendered to the custody of the Department of Corrections, and began serving his term in state prison. Under the general rule, those facts deprived the trial court of jurisdiction; it had no power thereafter to order his plea withdrawn and a new plea entered, to rearraign him, or to otherwise process him for felony trial on the charges on which he already had been sentenced. … [S]ection 1170, subdivision (d),[ ] provides for recall of a sentence by the superior court, but there is no claim that the provisions of that statute were invoked and, in any case, it does not permit a new sentence in excess of the original sentence.” (Cano v. Superior Court (1999) 72 Cal.App.4th 1310, 1314.)

Sandoval’s original abstract of judgment contained two clerical errors: it indicated that the court imposed a concurrent 10-year term on count 2 and a 10-year arming enhancement pursuant to section 12022.53. The trial court should have corrected these clerical errors by issuing an amended abstract of judgment to reflect the correct judgment. (People v. Little (1993) 19 Cal.App.4th 449, 451 [“A trial court has inherent power to correct clerical errors in its records so as to make these records reflect the true facts.”].) Further, since the court did not have jurisdiction to allow Sandoval to withdraw his plea or to impose a new sentence, the sentence it imposed on March 22, 2019, was unauthorized. In view of the foregoing, we will direct the trial court to issue an amended abstract of judgment that corrects the errors noted above.

Following an independent review of the record, we find that, except for the issues discussed above, no reasonably arguable factual or legal issues exist.

DISPOSITION

The trial court is directed to file an amended abstract of judgment that indicates Sandoval pled no contest in counts 1 and 2 to home invasion robbery in violation of section 213, subdivision (a)(1)(A) and in count 1 admitted a principal armed with a firearm enhancement pursuant to section 12022, subdivision (d). The abstract should also show that the court sentenced Sandoval to an aggregate prison term of 10 years, the middle term of six years on Sandoval’s conviction in count 1, a two-year arming enhancement pursuant to section 12022, subdivision (d) in that count, and a consecutive two-year term on his conviction in count 2, one-third the middle term of six years. The amended abstract should memorialize all the original sentencing elements, including that the court imposed restitution and parole revocation fines of only $3,000 each. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.