Filed 1/10/14 P. v. Atkins CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EARL RAY ATKINS,

Defendant and Appellant.

 H038834

 (Monterey County

 Super. Ct. No. SS121342A)

Defendant Earl Ray Atkins was charged with four counts of committing a lewd or 

lascivious act on a child under the age of 14. (Pen. Code, § 288, subd. (a).)

1 He pleaded 

no contest to one of the four counts conditional on a sentence of no less than three years 

and no more than eight years. The trial court imposed the upper term of eight years.

On appeal, defendant contends the trial court abused its discretion at sentencing by 

considering factors unsupported by evidence, misapplying aggravating factors, and 

failing to consider mitigating factors. Defendant asks that we dismiss the three remaining 

counts of committing a lewd and lascivious act, as well as an allegation that defendant 

was ineligible for probation, because his plea was conditioned on their dismissal. He also 

asks that we correct the minutes of the plea hearing to show he was not advised in 

 

1

Subsequent undesignated statutory references are to the Penal Code.
2

accordance with the provisions of section 1192.5 that relate to the taking of a conditional 

plea.

We find no abuse of discretion in the trial court’s decision to impose the upper 

term of eight years in state prison. We will, however, order dismissal of the three 

remaining counts of committing a lewd and lascivious act on a child under the age of 14, 

as well as the probation ineligibility allegation, as contemplated under the parties’ plea 

agreement. We will also order the minute order corrected to reflect the transcript of the 

plea hearing.

I. FACTS

2

On July 11, 2012, 13-year-old Jane Doe told police that defendant—her 

stepfather—had sexually assaulted her two years earlier, when she was 11. Doe said the 

incident occurred at her grandmother’s house when she was visiting with her mother and 

defendant. Doe had gotten into an argument with another family member when Doe’s 

mother told her to come into a bedroom to sleep. Doe lay on the edge of the bed, while 

defendant lay next to her, and her mother lay on the other side of defendant. While 

defendant lay awake, unable to sleep, he reached over to rub Doe’s belly. He then moved 

his hands into her pants and her underwear, and he touched her vagina. Doe was not sure 

if he penetrated her vagina. He rubbed her belly, chest, and vagina for approximately 30

minutes. She cried when it was over, but she did not know if her mother heard her.

Doe told her mother about the incident about six or seven months after it occurred. 

Her mother said she would speak with defendant. Later, Doe’s mother told her that 

defendant had denied any wrongdoing and said he was probably sleeping.

Doe said defendant assaulted her again in 2011. When he came into her room to 

wake her up for school, he lay on the bed beside her, rubbed her belly, and rubbed her 

breasts. Doe was upset and cried at school, but she did not tell her teachers what 

 

2 Our statement of facts is based on those set forth in the probation report.
3

happened. When she went home, she told her mother, “Earl’s doing it again.” Doe told 

her mother she was failing to protect Doe and choosing defendant over her. Doe’s 

mother responded, “Do you know what that will do to this family if someone found out?” 

In a pretext telephone call between Doe and defendant, he admitted touching her 

and said he knew it was wrong. Defendant said his wife hated him for it, and they fought 

every night.

Police arrested defendant and his wife at their home and questioned them in 

custody. At first, Doe’s mother ignored officers’ questions as to when Doe told her about 

the assaults, but she later admitted Doe had told her about them. The mother said 

defendant admitted touching Doe, but the mother did not know what to do about it. She 

said she knew that if she told anyone about it, her family would be destroyed.

Defendant admitted to police that he touched Doe. The first time it happened, he 

thought Doe was his wife. He denied touching Doe intentionally. However, defendant

admitted touching her inappropriately on the second occasion by rubbing her breasts. He 

also thought his leg had rubbed against her vaginal area while they were lying next to 

each other. He said he was having problems with his wife at the time, and he acted 

without thinking. He described Doe as very affectionate, and claimed his body 

responded without him thinking about it. When his wife found out about it, she called 

him in hysterics and threatened to call police. For two years, defendant told his wife 

daily that if anyone found out, it would destroy their family, he would go to jail, and they 

would lose their home. He told police it was a relief to have the truth finally out, and he 

wrote a letter of apology to his wife and Doe.

II. PROCEDURAL BACKGROUND

The prosecutor charged defendant with four counts of committing a lewd or 

lascivious act on a child under the age of 14. (§ 288, subd. (a).) The information also 

alleged defendant was ineligible for probation based on substantial sexual conduct with a 

child under 14. (§ 1203.066, subd. (a)(8).) 
4

Defendant pleaded no contest to one of the counts of committing a lewd or 

lascivious act on a child (count 3) in exchange for a sentence of no less than three years 

and no greater than eight years. Defendant entered no plea to the remaining counts and 

did not admit or deny the probation ineligibility allegation. The minutes of the hearing 

refer to dismissal of the remaining counts, but the transcript of the hearing shows no such 

order by the court. Nonetheless, defendant waived his rights under People v. Harvey

(1979) 25 Cal.3d 754 (Harvey), which otherwise would have precluded the court from 

considering the dismissed counts at sentencing. The minute order also indicates that the 

court advised defendant in accordance with the provisions of section 1192.5, but the 

transcript of the plea hearing shows no such explanation.

At the sentencing hearing, defendant addressed the court and apologized for his 

actions. Defendant admitted that, after the first incident, he told his wife and the victim 

that their family would be destroyed and they would lose their house if they told anyone 

about the incident. 

After family members addressed the court, the court heard further argument from 

counsel. Defense counsel argued that, compared to most of the child molestation cases 

she had handled, defendant’s offense did not warrant an aggravated term. The court and 

defense counsel then engaged in the following colloquy: 

“[The Court:] Don’t you ever wonder if we really know the whole story?

“[Defense counsel:] I do. I oftentimes wonder if we know the whole story.

“[The Court:] Don’t you know we never know the whole story.

“[Defense counsel:] I don’t think either side does, and I don’t think—I'll make an 

assumption that the Court doesn’t either.

“[The Court:] No. I agree with that. That’s that’s [sic] the thing. I mean, it’s like 

every time we have someone come in and describe how much they had to drink, 

it’s always two beers. I think if the guy is really big, he’ll say three. It’s just it is a 

dynamic of humanity to do that.”
5

The court continued, describing at length the defendant’s conduct and its effect on 

the victim. The court stated defendant sought to avoid accountability when he initially 

said he thought the victim was his wife. The court described defendant as a manipulator 

who repeatedly silenced his wife and victim with the prospect of familial destruction and 

the loss of their house if they spoke out. The court stated that these threats had caused 

the victim to suffer from guilt and conflict that she would likely endure indefinitely. 

The court then turned to the statutory factors governing defendant’s sentence. The 

court noted the age difference between defendant and the victim, together with the nature 

of his relationship to her, and the court found defendant had taken advantage of a position 

of trust. Based on defendant’s statements to the victim and his wife concerning the 

destruction of their family and the loss of their house, the court found defendant had 

dissuaded two witnesses from reporting the offense. The court found defendant had 

engaged in conduct showing he was a danger to the community.

Turning to the defendant’s criminal record, the court erroneously stated defendant 

had suffered nine felony convictions.3 The court also found defendant had served a prior 

prison term, that he was on probation at the time of the offense, and that his prior 

performance on probation had been unsatisfactory. In considering mitigating factors, the 

court found defendant had admitted to the wrongdoing, and that his prior performance on 

parole had been satisfactory. 

The court then found the aggravating factors “clearly” and “substantially”

outweighed the mitigating factors. The court sentenced defendant to the upper term of 

eight years. Defendant lodged no objections.

The minute order for the sentencing hearing states, “All remaining charges, 

enhancements and/or special allegations are hereby ordered dismissed/stricken pursuant 

to PC 1385.” The abstract of judgment shows a conviction on one count of a lewd or 

 

3 According to the probation report, defendant suffered four felony convictions 

and four misdemeanor convictions as of September 2012.
6

lascivious act on a child under the age of 14; entries for listing enhancements were left 

blank. 

III. DISCUSSION

Defendant contends the trial court, biased and lacking impartiality, abused its 

discretion by sentencing him in reliance on matters outside the record and without 

substantial evidence. Defendant also argues that several of the statutory factors in 

aggravation were inapplicable, and that the court failed to consider mitigating factors. 

Defendant argues his failure to object did not forfeit his claim, but that if it did, he 

suffered ineffective assistance of counsel. Defendant further contends we must dismiss 

the remaining counts in the information, as well as the probation ineligibility allegation. 

Finally, defendant requests we order correction of the minute order for the plea hearing to 

show the court did not advise him in accordance with the provisions of section 1192.5. 

The Attorney General implicitly concedes defendant has not forfeited his claim of 

improper sentencing because the probation report gave no notice of a recommended 

sentence and the trial court interrupted defense counsel before she could interpose an 

objection. Accordingly, we will consider the merits of defendant’s claims.4

The Attorney General further concedes that the trial court erroneously stated 

defendant had nine felony convictions. Nonetheless, the Attorney General contends the 

court did not abuse its discretion in sentencing defendant, and that the factors cited by the 

court are supported by substantial evidence. Finally, the Attorney General contends the 

record shows the court dismissed the remaining counts and the probation ineligibility 

allegation. The Attorney General does not object to correction of the minutes regarding 

section 1192.5. 

 

4

For the same reason, we need not consider defendant’s claim of ineffective 

assistance for trial counsel’s failure to object at sentencing.
7

A. Standard of Review

A trial court’s sentencing decision is subject to review for abuse of discretion. 

(People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) “The trial court’s 

sentencing discretion must be exercised in a manner that is not arbitrary and capricious, 

that is consistent with the letter and spirit of the law, and that is based upon an 

‘individualized consideration of the offense, the offender, and the public interest.’ ” 

(Ibid.) A trial court abuses its discretion “if it relies upon circumstances that are not 

relevant to the decision or that otherwise constitute an improper basis for decision.” 

(Ibid.) A single factor in aggravation may support imposition of an upper term. (People 

v. Castellano (1983) 140 Cal.App.3d 608, 615.) “When a trial court has given both 

proper and improper reasons for a sentence choice, a reviewing court will set aside the 

sentence only if it is reasonably probable that the trial court would have chosen a lesser 

sentence had it known that some of its reasons were improper.” (People v. Price (1991) 

1 Cal.4th 324, 492 (superseded by statute on other grounds).)

B. The Court’s Statement, “We never know the whole story.”

Defendant contends the trial court improperly based its decision on unsupported 

facts. Defendant also claims that the trial court improperly considered the behavior of 

criminal defendants generally and the “dynamic of humanity”—matters that were not 

properly before the court. As a result, defendant argues, the trial court improperly 

discredited the sincerity of his admissions to the charged offenses. 

Specifically, after defense counsel argued defendant’s actions were less 

blameworthy than those in most such cases, the court asked, “Don’t you ever wonder if 

we really know the whole story?” The court then answered its own question: “Don’t you 

know we never know the whole story.” The court cited to instances of defendants who 

claimed to have only had two or three beers, and the court stated that “it is a dynamic of 

humanity to do that.”
8

The court then continued, describing defendant’s attempts to escape accountability 

and manipulate his family into a state of guilt and psychological suffering. Although 

defendant argues the court improperly based its decision “primarily” on such findings, 

the record does not show that the court based its decision on these factors, as opposed to 

the statutory factors the court set forth just before pronouncing the sentence. 

Nonetheless, the court’s statements are troubling. 

Our law requires sentencing based on an “individualized consideration of the 

offense [and] the offender,” Sandoval, supra, at p. 847, not a general finding about the 

“dynamics of humanity” or the tendency of criminal defendants in general to minimize 

their misconduct. Adding to this concern are indications in the record suggesting the 

court may have considered an uncharged, unproven offense in its decision-making. 

Handwritten notes on the front page of the probation report state, “Rumor = molested 

[. . .] in past”.5 This appears to refer to a statement in the probation report from a relative 

of the victim. The relative reported hearing second hand from defendant’s family that 

“this was not the first time that Atkins had molested someone.” Although the relative

“was not provided with specifics as to dates or location as to when this offense may have 

occurred,” the relative claimed defendant had been convicted of the offense. In fact, 

defendant’s record shows no such conviction.

The court’s statement that “we never know the whole story” is of particular 

concern in this context. Nothing in the record shows the defendant was actually charged 

with such conduct. It would have been improper to use the relative’s allegation as a 

factor in determining defendant’s sentence. “To give a harsher sentence because of an 

uncharged offense for which there is no conviction [. . .] violates due process.” (People 

v. Aragon (1992) 11 Cal.App.4th 749, 764 [citing United States v. Grayson (1978) 438 

U.S. 41, 54-55].) However, absent some affirmative showing on the record that the court 

 

5

The omitted word identifies the alleged victim.
9

used the allegation as a factor in sentencing, we presume the court acted properly. 

(People v. Montano (1992) 6 Cal.App.4th 118, 122 [superseded by statute on other 

grounds].) But even were we to assume the court considered the factor erroneously, for 

the reasons below, we do not find it reasonably probable the court would have chosen a 

more favorable sentence in the absence of such error.

C. Defendant’s Statements And The Psychological Impact On The Victim

As an initial matter, defendant disputes the court’s characterization of his

statements about how the molestation occurred, arguing that the record shows defendant 

was forthcoming and honest about the nature of the offense. Defendant emphasizes 

admissions he made to his probation officer about details of the molestation not reported 

by the victim. The court, by contrast, emphasized defendant’s statement to police 

claiming he believed he was touching his wife when he first molested Doe—a statement 

the court characterized as incredible and an attempt to evade accountability. Defendant 

does not dispute that he did in fact make that statement, which is set forth in the probation 

report. The record, therefore, provides evidence for the fact of the statement, and we find

no abuse of discretion in the court’s characterization of the statement.

Defendant also contends the court exaggerated his statements to the victim and his 

wife in which he told them their family would be destroyed and their house would be lost 

if they told anyone about the assaults. The probation report states that after defendant’s 

wife discovered the second molestation, “he told her that if anyone found out, it would 

destroy their family, that he would go to jail and they would lose their home. Atkins 

admitted that he pounded that into her head; daily, for two years and it was such a relief 

to finally have the truth out, as it was always held over his head.” At the sentencing 

hearing, defendant admitted for the first time that he had also told the victim not to tell 

anyone about his actions. “I said if she—and I asked her not to tell because if she did, 

then it would destroy our family, and the kids would be without a father, which they are 

now because of my selfishness.” 
10

The court characterized defendant’s statements as attempts to manipulate the 

victim and his wife into silence: “We know that he manipulates. He doesn’t hesitate to 

manipulate. We know that because in the probation report it was clear that he—it was 

the—the topic of conversation between him and his wife when they argued, every night, 

according to her anyway. Every night arguing over what he did to that little girl. Every 

night that little girl hearing them argue about what he did to her, I am sure. Every night 

him telling her, If you say anything to anybody it will destroy you and me and our family. 

Shut up. I win, you lose. He manipulates.” 

Defendant contends this description is factually inaccurate because the record does 

not show the victim heard defendant threaten his wife “every night.” According to the 

probation report, defendant and his wife shared joint custody of the victim with her 

father, so the victim could not have heard defendant arguing with his wife “every night.” 

The court appeared to be relying on the probation report’s statement that the defendant 

“pounded into [his wife’s] head” on a “daily” basis the threat of familial destruction. 

While the court may have exaggerated the victim’s exposure to such arguments, the 

record provides evidence for the court’s overall description of these events. We find no 

abuse of discretion in the court’s consideration of these statements.

Defendant further argues that the court, in the course of this description, attributed 

statements to the defendant that he did not make. The court paraphrased defendant’s 

threats to the victim as follows: “If you, little girl, tell what I did to you, you will destroy 

this family. You will cause this wonderful world that we have—you will cause pain to 

your mother, you will cause pain to your siblings, your half-siblings. You will cause pain 

to an entire family, everybody that’s here. You will destroy us, little girl.” It is apparent 

from the court’s adoption of the first-person voice that the court was intentionally setting 

forth a fictitious rendering of defendant’s threats to the victim, not that the court factually 

and literally believed he used these exact words. We do not consider this language to 

constitute a factual finding.
11

The court then added, “I wonder how many times he communicated that message 

to that little girl? I wonder how many times at family events that little girl suffered 

because she couldn’t tell.” The court stated that the victim continued to bear the guilt of 

having ruined the family, and the court described at length the nature of her guilt and its 

effect on her psyche. Defendant contends the court’s statements consisted of unfounded 

speculation, and that the record does not set forth evidence supporting the type and 

degree of psychological harm to the victim that the court described. 

It appears the court’s statements concerning the psychological impact on the 

victim were based on a letter to the court from the victim’s biological father stating, “My 

wife and I listen to [Doe] tell about what happen [sic] and how she wonders why her 

mother [] did not listen the first time she told her, and why she is not allowed to see her 

brother and sister and why [mother’s] parents are not talking to her, Her question is why, 

What did I do wrong? We explain that she did not do anything wrong, that a few adults 

have let her down, but there are many adults that are there to support and help her. 

However, the guilt this child carries is great, much too great for a child of her age. I ask 

that when you hand down Earl’s sentence that you take into consideration that the years 

you give him, will never be the number of years our daughter and family will live with 

this loss of innocence.” The probation report also noted that the victim had recently 

agreed to attend therapy in connection with the offense. While the court’s elaboration on 

the nature of the psychological damage to the victim did not conform precisely to the 

nature of the impacts as set forth in the record, the court’s statements are not without 

evidentiary support. They do not constitute an abuse of discretion.

Defendant also argues the court improperly addressed the defendant’s family at 

the sentencing hearing. After describing the psychological impact on the victim, the 

court stated, “We have the family of one side here talking about him and what this Court 

what the outcome of this Court is—what the consequence is to him. We can protect her, 

somehow. We aren’t with him every day, but we can protect her from him. But what can 
12

you do for that little girl, who feels that she is responsible for him going to prison, the 

conflict that obviously exists between the two sides of the families right now. She’s not 

going to Christmas and enjoying your company. She senses that you feel it’s her fault 

somehow or that this wouldn’t happen except for her telling. That’s what her sense is. 

She’s not going to talk about it. Are you? Are you going to say, I am so sorry about 

what happened to you because of him? Is that how it’s going to work? Nobody’s going 

to talk about it. Hey, let’s not talk about it. It hurts to talk about it. So, you won’t talk 

about it and she’ll sit there and she’ll wonder what’s going on in your mind.” 

It is not clear from the record to whom the court was speaking at various points in 

these remarks. Some of these statements appear directed towards defendant, while others 

appear directed towards family members. As to other statements, the record does not 

reveal whom the court was addressing. However, nothing in the record shows the court 

based the sentence on anything other than factors directly relevant to defendant and the 

offense. The statements to others, especially those statements that speculate about and 

are critical of future family interactions, while inappropriate, do not constitute an abuse 

of discretion.

D. Defendant’s Dangerousness and Prior Convictions

Defendant argues that the court abused its discretion in describing defendant as 

dangerous and having a “malignant heart.” The court, after finding defendant a danger to 

the community, added, “I heard not too long ago a description of the people that really do 

create the biggest threat to others is the person who looks and acts, who appears, to be 

normal, hard working, someone you want to know, someone you want to have around 

you, and he has this malignant heart that you don’t see.” The court then noted 

defendant’s record of criminal convictions, and continued: “You know, he has given a 

speech every night, if you tell it will destroy the family, knowing that, with full 

knowledge, that that is the consequence of this conduct if he does it. He does it again.

Malignant heart. You cannot see it, you do not know it. It’s the people that are like that, 
13

who walk around invisible, that are dangerous. And you, sir, are dangerous. You’re a 

nice guy. Hey, you’re friendly. You’re a good manipulator. You’re dangerous. I think 

that’s what you have demonstrated over and over and over again.” 

Defendant contends these statements are not supported by the evidence. 

Defendant argues that his criminal record—consisting primarily of convictions for nonviolent offenses—does not show he is dangerous. The probation report states that his 

score on the Static-99, an actuarial measure of the risk for sexual recidivism, places him 

in the “low risk” category. Defendant also points to the numerous letters of support 

submitted by defendant’s family members and coworkers emphasizing defendant’s 

positive contributions to his family and the community. 

A sentencing court considers whether a defendant has engaged in violent conduct 

indicating a danger to society under California Rules of Court, rule 4.421(b)(1). 

Additionally, a court considers whether the defendant’s prior convictions are numerous or 

increasing in seriousness under California Rules of Court, rule 4.421(b)(2). Here, the 

court considered both factors, noting defendant’s “malignant heart” and “nine [sic] felony 

convictions” together. The probation report shows defendant has four felony convictions 

for burglary, theft, and possession of a controlled substance. (§§ 459, 484; Health & Saf. 

§ 11377, subd. (a).) Prior to the instant offense, he suffered his most recent conviction 

for misdemeanor spousal battery. (§ 243, subd. (e).) In addition to defendant’s four prior 

convictions, the court could also consider the three dismissed felony counts under 

defendant’s Harvey waiver. Thus, at the time of sentencing, defendant had been 

convicted of a total of five felonies and four misdemeanors, and he had recently been 

charged with three additional felonies. This record is sufficient to support the court’s 

findings as to the defendant’s dangerousness and the numerous or increasingly serious

nature of his offenses. We find no abuse of discretion. 

As to the court’s misstatement of the number of felony convictions defendant 

suffered, the court’s error was harmless. Even if defense counsel had objected and 
14

corrected the number of felonies, it is not reasonably likely the court would have imposed 

a lesser sentence given the criminal record noted above.

E. Other Factors in Aggravation

Defendant contends the other factors in aggravation set forth by the court did not 

apply to the offense here. First, the court noted the age difference between defendant and 

the victim, and the court found defendant was in a position of trust. The court properly 

considered these factors under California Rules of Court, rule 4.421(a)(3) (the victim was 

particularly vulnerable) and rule 4.421(a)(11) (defendant took advantage of a position of 

trust or confidence). Defendant contends the court improperly relied on the defendant’s 

young age because it is an element of the offense. (People v. Ginese (1981) 121 

Cal.App.3d 468, 477 (use of victims’ minority to impose upper term for convictions on 

two counts of child molesting was error).) However, the court’s reference to the 

difference in their ages, in conjunction with the reference to the defendant’s position of 

trust, shows the court was primarily considering the victim’s vulnerability. (People v. 

Robinson (1992) 11 Cal.App.4th 609, 615 (child victim’s vulnerability can be used even 

if age is an element of the offense) (disapproved on other grounds); cf. People v. 

Quinones (1988) 202 Cal.App.3d 1154, 1159 (error for court to consider victim’s young 

age in absence of finding that defendant took advantage of a position of trust)

(disapproved on other grounds).) 

Defendant further contends the record fails to show defendant took advantage of a 

position of trust. We disagree. It is unlikely the victim would have gotten into bed with 

the defendant if he were not her stepfather. He took advantage of her doing so to commit 

the offense. The court’s finding is supported by the record.

Finally, the court found defendant was on conditional probation at the time of the 

offense, a factor in aggravation under California Rules of Court, rule 4.421(b)(4). The 

probation report confirms this finding. Defendant argues this finding was unsupported 

because the court must have believed defendant was on conditional probation for a felony 
15

offense, when in fact his was on probation for a misdemeanor offense. Defendant cites 

no authority for the proposition that only felony probation qualifies as an aggravating 

factor under this rule. Nor did the court state defendant was on felony probation. The 

court’s finding was supported by the record and the court properly considered this factor

in sentencing regardless of whether defendant was on felony probation or misdemeanor 

probation.

F. Mitigating Factors

Defendant contends the court failed to consider various factors in mitigation. The 

court found two factors on the record. The court described defendant’s admission to the 

offense as a “heavy factor” in mitigation. (Cal. Rules of Court, rule 4.423(b)(3).) The 

court also acknowledged defendant’s prior satisfactory performance on parole. (Cal. 

Rules of Court, rule 4.423(b)(6).) Nonetheless, the court found the aggravating factors 

clearly outweighed these mitigating factors. 

Defendant argues that the court should have considered numerous factors in 

mitigation, including his expression of remorse, his family circumstances, his steady 

employment, his support for his family, his low score on the Static-99, his current 

abstinence from drugs and alcohol, his lack of a criminal conviction in recent years, his 

cooperation with law enforcement, his good character as demonstrated by letters of 

support, and that the crime was committed because of an “unusual circumstance” that is 

unlikely to recur. Of these asserted factors, only the last is statutorily mandated. (Cal. 

Rules of Court, rule 4.423(a)(3) [crime was committed because of an unusual 

circumstance, such as great provocation, that is unlikely to recur].) Defendant does not 

set forth any other unusual circumstances. Although the court is not limited to 

considering the statutorily mandated factors, a sentencing court is also not required to set 

out its reasons for rejecting mitigating factors. (People v. Jones (1985) 164 Cal.App.3d 

1173, 1181.) We find no abuse of discretion in the trial court’s failure to elucidate

additional mitigating factors on the record.
16

Because the trial court did not abuse its discretion in sentencing defendant to the 

aggravated term, we will affirm the judgment.

G. Dismissal of the Remaining Counts

Defendant asks that we dismiss the three counts in the information to which he 

entered no plea, in addition to the probation ineligibility allegation under § 1203.066. He 

contends the parties contemplated dismissal of these counts under his plea agreement, but 

the court failed to do so. The Attorney General agrees that the plea agreement 

encompassed dismissal of these counts and the probation ineligibility allegation, but she

contends the court dismissed the remaining counts via the signed minutes of the 

sentencing hearing. 

It is apparent from the record that the plea agreement contemplated dismissal of 

the three remaining counts and the probation ineligibility allegation, as set forth in the 

probation report. However, transcripts of hearings show no such motion to dismiss by 

the prosecutor, nor any oral order by the court dismissing any of the three remaining 

counts or the probation ineligibility allegation. The minutes of the plea hearing state, 

“Dismissal of remaining counts-Harvey Waiver continued to time of sentence.” The 

minutes of the sentencing hearing, signed by the court, state, “All remaining charges, 

enhancements and/or special allegations are hereby ordered dismissed/stricken pursuant 

to PC 1385.” The abstract of judgment shows only the conviction as to Count Three, to 

which defendant pleaded no contest. 

“ ‘Rendition of judgment is an oral pronouncement.’ ” (People v. Mesa (1975) 14 

Cal.3d 466, 471.) When there is a discrepancy between the oral pronouncement of 

judgment and the minute order, the oral pronouncement controls. (People v. Zackery

(2007) 147 Cal.App.4th 380, 385.) “The clerk cannot supplement the judgment the court 

actually pronounced by adding a provision to the minute order and the abstract of 

judgment. [Citation.] . . . [T]he clerk’s minutes must accurately reflect what occurred at 

the hearing.” (Id. at pp. 387-388.) There being no oral pronouncement of dismissal on 
17

the record, we decline to find a dismissal based on the minutes. However, because the 

parties agree that dismissal was a condition of the plea agreement, we will order 

dismissal of the remaining counts and the probation ineligibility allegation nunc pro tunc 

to the pronouncement of judgment.

H. Correction of the Minutes

Defendant asks that we correct the minutes of the plea hearing to show that the 

court did not advise him in accordance with the provisions of section 1192.5. The 

minutes of the plea hearing state, “Plea is accepted by District Attorney and approved by 

the court after explaining provisions of section PC 1192.5 to defendant.” (Italics added.) 

But the transcript of the hearing shows no such advisement. The Attorney General 

concedes the error and does not object to correction of the minutes. Accordingly, we will 

order the minutes corrected to omit the erroneous phrase. 

IV.DISPOSITION

Counts One, Two, and Four and the probation ineligibility allegation under section 

1203.066 as charged in Information No. SS121342A are hereby dismissed nunc pro tunc 

to September 19, 2012. The trial court shall correct the minutes of the hearing on August 

15, 2012, to delete the phrase “after explaining provisions of section PC 1192.5 to 

defendant.” As modified, the judgment is affirmed.
18

_________________________

MÁRQUEZ, J.

We concur:

_________________________

RUSHING, P.J.

_________________________

PREMO, J.