1

Filed 2/21/14 P. v. S mith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DASCAN STAR S MITH, Defendant and Appellant. E057663 (Super.Ct.Nos. RIF1101300 MF , RIF1101793, RIM1108735, RIF1200963, RIF1200517, RIF1200299, RIF1202151 & BAM1201313 )
OPINION

APPEAL from the Super ior Court of Riverside County. Becky Dugan, Judge. Affirmed in part; r everse d in part and remanded. Donna L. Harris, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Att orney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.2

In six felony and two misdemeanor complaints, the People charged defendant
Dascan Star Smith with 14 felo nies and five misdemeanors, and alleged numerous

sentence enhancements. The trial court consolidated all eight cases and subsequently gave an indicated sente nce of 15 years in state prison. D efendant agreed to plead guilty
to all counts and to admit all sentence enhancements . The trial court took defendant’s guilty pleas and admissions and dismissed a misdeme anor count of failure to appear. It
then imposed sentence as indicated . However, the trial court neglected to orally take defendant’s guilty plea on two of the felony counts and on one of the misdemeanor

count s . The court also failed to orall y take defendant’s admission on five out

- on - bail allegations, and failed to take defendant’s admission that a residence was inhabited for purposes of three fir st degr ee robbery charges

. On appeal, defendant contends the trial court entered unauthorized sentences on
the substantive counts and sentence allegations, which he did not admit orally , and did not orally pronounce sentence on some counts for which senten ce was entered in the
minute order . Defendant does not seek to set aside his guilty pleas and sentence, but instead requests that we remand the case so that he may orally plead guilty and enter admissions to the previously overlooked charges and allegatio ns , and for the trial court to correctly pronounce sentence . The People concede that a remand is necessary. We agree
and reverse the judgment in part and remand the case for the trial court to take defendant’s oral guilty pleas and admissions, and to pro perly pronounce sentence.3 I.
PROCEDURAL BACKGROUND 1
A. The Pleadings Between January 2011 and June 2012 , the People filed six felony complaints and
two misdemean o r complaints against defendant. In case No. RIF1101300, the People charged defend ant with one count of robbery. (Pen. Code, 2 § 211.) The complaint filed i n case No. RIF1101793 charged defendant with assault with a deadly weapon (§ 245, subd. (a)(1)), robbery (§ 211), cor poral injury on a cohabitant (§ 273.5, subd. (a)), misdemeanor battery (§ 242 ), and misdemeanor v andalism (§ 594, subd. (b)(2) (A) ). The People ch arged defendant in case No. RIM 1108735 with misdemeanor giving
a false identification to a peace o fficer. (§ 148.9, subd. (a).) Defendant did not appear for his arraignment, so the compl aint was amended to charge defendant with failure to
appear . (§ 853.7. ) In case No. RIF1200963, the People charged defendant with three counts of first degree burglary (§ 459) , one count of first degree robbery in an inhabited dwelling

1 A discussion of the underlying facts of defendant’s admitted crimes is unnecessary to the resolution of this appeal.

2 All undesignated statutory references are to the Penal Code.4

(§§ 211, 212.5, sub d. (a)), and alleged that defendant committed those four crimes while

out on bail on another case (§ 12022.1 )

. Defendant was charged in case No. RIF1200517 with first degree robbery in an inhabited dwelling (§§ 211, 212.5, subd. (a)), first degree burglary of an inhabited dwelling (§§ 459, 667.5 , subd. (c)(21) ), and attempted b urglary (§§ 664, 459). The People also alleged that defendant personally used a dangerous and deadly weapon during t he commission of the robbery (§ § 12022, subd. (b) (1) , 1192.7, subd . (c)(23) ), and
that defendant committed all three crimes while out on bail on another cas e (§ 12022.1). The felony complaint filed in case No. RIF1200299 charged defendant with assault with a deadly w eapon. (§ 245, subd. (a)(1).) In case No. RIF1202151, the People charged defendant with first degree burglary (§ 459), and first degree robbery in an inhabited dwelling (§ § 211 , 212.5, subd. (a) ). The People also alleged that defendant committed the robbery 3 while he was out on bail on another case. (§ 1202 2.1.) Finally, the misdemeanor complaint filed in case No. BAM1201313 charged
defendant w ith destroying jail p roperty. (§ 4600, subd. (a).) The trial court granted the People’s unopposed motion to consolidate all eight

cases under case No. RI F1101300. T he People did not f ile a consolidated complaint.

3 In its brief, the People concede the out

- on - bail allegation in case No. RIF1202151, which is in the singular (“the above listed felony offense”), does not also apply to t he burglary count.5

Instead, t he clerk of the superior court entered all 19 c harges into the docket, mostly in chronological order of the date on which the crimes allegedly occurred , and gave them
new count numbers : c ount 1 c orresponded to the sole count alleged in case No. RIF1101300; c ounts 2, 3 , and 4 corresponded to the three counts alleged in case No.
RIF1200517 ; c ounts 5 and 6 corresponded to the two counts alleged in case No. RIF1202151; c ount 7 corresponded to the sole count alleged in case No. RI F1200299 ;

c ounts 8 , 9, 10, and 11 corresponded to the four counts alleged in case No. RIF1200963 ;

c ounts 12 , 13, 14, 15, and 16 corresponded to the five counts alleged in case No.
RIF1101793 ; c ounts 17 and 18 corresponded to th e two misdeme anor counts alleged in
case No. RIM1108735 ; a nd c ount 19 corresponded to the sole misdemeanor count alleged in case No. BAM1201313.
B. Defendant’s Guilty Pleas and Admissions On August 6, 2012, defendant signed a standard plea form indicating he agreed to plead guilty to all of the charges and to admit all s entence allegations for an indicated sentence of 15 years in state prison

. T he sentence on the remaining count s and sentence
enhancements was to be served concurrently to the principal term

. Defendant entered guilty pleas for almost all of the 19 charges. He plead ed guilty

to: r obbery as alleged in count 1 ; providing false identification to a police office r as alleged in c ount 17 ; firs t degree robbery as alleged in c ount 2 ; first degree bu rglary as alleged in count 3 ; at tempted burglary as alleged in count 4 ; first degree burglary as alleged in c ount 8 ; first degree burglary as alleged in count 9 ; firs t degree robbery as6

alleged in count 10 ; first degree burglar y as alleged in c ount 11 ; mis demeanor vandalism of jail property a s alleged in c ount 19 ; assault with a deadly weapon as alleged in count 7 ; assault with a deadly weapon as alleged in count 12; robbery as alleged in c ount 13 ; corporal injury to a cohabitant as alleg ed in count 14 ; and mis demeanor battery as alleged
in count 15. On its own motion, t he trial court dismissed the charge of failure to appear alle ged
in count 18. Perhaps due to the large number of charges and the lack of a consolidated pleading, the trial court neglected to take defendant’s guilty plea s to first degree burglary as alleged in c ount 5, firs t degree robbery as alleged in c ount 6, and misde meanor vandalism as alleged in c ount 16.
Defendant also admitted that he committed the f irst degree robbery alleged in

count 2 with a deadly weapon , that someone other than an accomplice was present when
he committed the fi rst degree burglary alleged in count 3 , and that he committed c ounts
2 , 3, and 4 while he was out on bail on another case . The trial court neglected to take defendant’s admission to the allegations that the robberies alleged in c ounts 2, 6, and 10 occurred in an inhabited dwelling (§ 212.5, subd. (a)), and that he co mmitted counts 6, 8, 9, 10, and 11 while he was out on bail on another case.7

C. Sentencing
Pu rsuant to the plea agreement, the trial court sentenced defendant to the middle

term 4 of six years for the principal count of first degree robbery under c ount 2, and imposed a one

- year consecutive term for the admission that defendant used a knife during

t he commission of the robbery , for a total of seven years

. For the three out

- o n - bail allegations relating to c ounts 2 , 3, and 4, the court sentenced defendant to two years each, for a total of six years to be served cons ecutively with the sentence on c ount 2. 5 And for defendant’s convictions for assault with a deadly weapon under c ounts 7 and 12, the trial
court sentenced defendant to one

- third the middle term of three years, for a total of two years to be served consecu tively to the term imposed for count 2. On the remaining counts, the trial court imposed sentences to run concurrently with the principal count . The court sentence d defendant to 180 days in jail for each of his
convictions for misdemeanor giving a false identification to a peace officer as alleged in

c ount 1 7 , and for misdemeanor vandalism of jail property as alleged in count 19. For defendant’s conviction for inflicting corporal injury on a cohabitant as alleged in c ount 14, the court sentenced defendant to the low term of two years. The trial court sentenced

4 The trial court stated on the record that it was senten cing defendant to the “upper term of six years” on count 2. But, as accurately reflected in the minute order and a bstract of judgment , the robbery alleged in count 2 was in the first degree , so six years was the middle term. (§§ 211, 212.5, subd. (a), 21 3, subd. (a)(1)(A).)

5 The minute order only indicates imposition of sentence on the out

- on - bail allegat ion relating to count 4.8

defendant to the low term of two years for defendant’s robbery convictions under c ounts 1 and 13. 6 Finally, the court sentenced defendant to the low term of two years for each of
defendan t’s burglary convictions under c ounts 3, 8, 9, and 11. T h e same low term of two years was apparently impos ed for the burglary alleged in c ount 5 , although , as noted ante , the court did not take defendant’s plea to that charge. The trial court neglected to orally impose sentence for defendant’s convic tions for attempted burglary under c ount 4 and for misdemeanor battery under c ount 15, although the minutes and abstract of judgment reflect imposition of an eight

- m onth sentence on the former, and the minutes indicate a 180

- day sentence on the latter. Th e minutes and abstract of judgment also reflect an inaccurate low

- term sentence of two years for defendant’s first degree robbery conviction under c ount 10 (see ante , fn. 6), that was not orally imposed. Finally, the mi nute order and abstract of judgment purport to reflect that
the trial court sentenced defendant to the inaccurate low term of two years for first degree robbery as alleged in c ount 6, two years for the out

- on - bail enhancements relating to

c ounts 6 and 11, and 180 days in jail for misdemeanor vandalism as alleged in c ount 16, notwithstanding the fact that defendant did not orally plead guilty to these charges and

6 The minute order and abstract of judgment purport to reflect that the court also imposed the low term of two years for def endant’s robbery convictions under counts 6 and 10. Like count 2 (see ante , fn. 4), the robberies alleged in counts 6 and 10 were in the first degree, so the court could not have imposed a low term of two years. (§ 213, subd. (a)(1)(A) [low term for firs t degree robbery is three years].)9

did not orally admit these sentence allegations, and notwithstanding the fact that the trial court did not orally impose those sente nces. II.
DISCUSSION

“ It is elementary that a defendant should not be punished for a crime of which he
was not convicted. [Citation.]” ( People v. Torres (2011) 198 Cal.App.4th 1131, 1148.) Imposition of a sentence on a c harge for which the defendant d id not enter an oral plea of guilty is an unauthorized sentence. ( People v. Zackery (2007) 147 Cal.App.4th 380, 385

- 386.) Entry in the minutes of a sentence which the trial court did not orally pronounce is unauthorized, and may be corrected on appeal. ( Id . at pp. 386

- 387.) As noted, defendant did not orally plead guilty to first degree burglary as alleged
in c ount 5, firs t degree robbery as alleged in c ount 6, or misdemeanor vandalism as alleged in c ount 16. Nor did defendant orally admit that the robb eries alleged in c ounts 2, 6, and 10 were committed in inhabited dwellings, and that counts 6 , 8, 9, 10, and 11 were committed while he was out on bail, for purposes of sentencing. Therefore, the sentences imposed for those counts and sentence allegations

— orally or in the minutes

— are unauthorized. Moreover, although defendant pleaded guilty to at tempted burglary as alleged in

c ount 4, and to misdemeanor battery as alleged in c ount 15, the trial court did not orally pronounce sentence on those charges. Th e sentences entered in the minutes for those
counts are unauthorized.10 III.
DISPOSITION The judgment is reversed in part and remanded for the trial court to take defendant’s oral plea of guilty to the charges of first degree burglary as alleged in

count 5, first degree robbery as alleged in c ount 6 , and misdemeanor vandalism as alleged
in c ount 16 . The court shall also take defendant’s oral admissions that counts 6, 8 , 9, 10,
and 11 were committed while defendant was out on bail on another case, and shall t ake defendant’s oral admission that the robberies alleged in c ounts 2, 6, and 10 were committed in an inhabited dwelling, for purposes of s ection 212.5, subdivision (a).
The trial court shall then orally pronounce sentence on all counts and sentence allega tions, and the clerk of the superior court shall amen d the minute order and abstract of judgment and forward them to the Department of Corrections and Rehabilitation. In all other respe cts, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

HOLLENHORST

Acting P. J.

CODRINGTON J.