People v. Davis CA3

Filed 10/29/14 P. v. Davis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C075669

Plaintiff and Respondent, (Super. Ct. No. 13F04546)

v.

MICHAEL DAVIS,

Defendant and Appellant.

Defendant Michael Davis was convicted following a jury trial of possession of cocaine base for sale and received a split sentence consisting of two years in the county jail and 12 years on mandatory supervision. The trial court orally imposed certain conditions of mandatory supervision at the sentencing hearing. The trial court’s minute order, which incorporates the probation report, sets forth additional conditions that were not orally imposed at sentencing. On appeal, defendant contends the minute order must be modified to eliminate the new conditions. The People urge us to remand for

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resentencing to allow the trial court to clarify its order. We shall adopt the People’s proposed solution and remand for resentencing. BACKGROUND We dispense with a recitation of the facts surrounding defendant’s crime as they are not relevant to the issue raised on appeal. Defendant was charged with possession of cocaine base for sale. The information also alleged two prior drug convictions and four prior prison terms. Defendant was convicted following a jury trial of possession of cocaine base for sale on October 22, 2013. He waived his right to a jury trial on the prior conviction allegations. On December 5, 2013, the trial court found true defendant’s two prior drug convictions and three of his four prison priors. The trial court then sentenced defendant to a term of 14 years based on a five-year upper term on the underlying offense, two three-year terms on the prior drug convictions, and three one-year terms for the prison priors. The trial court imposed a split sentence, with two years in the county jail and the remaining 12 years on mandatory supervision. During the sentencing hearing, the trial court described the conditions of mandatory supervision as follows: “The conditions of supervision are that Mr. Davis obey all laws. Your person, property, and vehicle are subject to search. You must follow the instructions of the probation department, report to the probation department within two business days of your release from jail, and you are not to knowingly possess or knowingly associate with anyone who is possessing or using any controlled substance.” The trial court rejected the probation department’s recommendation that defendant complete an AIDS education program and ordered him to register as a drug offender. The trial court also notified defendant that his felony conviction prohibited him from possessing firearms or ammunition. The minute order from the sentencing hearing provides in pertinent part: “THE CONCLUDING TERM 12Y SHALL BE ON