People v. Burns CA5

California Court of Appeal Apr 9, 2021 No. F080032Unpublished

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Holding. The court held that a second sentence imposed on the defendant for the same case was void for lack of jurisdiction and that the trial court's minute order must be corrected to reflect the original oral pronouncement of judgment.

Issues

Whether the trial court had jurisdiction to impose a second sentence on the defendant for the same case after execution of the initial sentence had commenced.
Whether the minute order accurately reflected the trial court's oral pronouncement of judgment.

Disposition. Affirmed as modified

Quotations verified verbatim against the opinion

“the trial court lacked jurisdiction to sentence defendant on case No. VCM341757 and the sentence pronounced on that date with regard to the misdemeanor vandalism count was void and will be stricken.”

“When a discrepancy exists between a trial court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls.”

Filed 4/9/21 P. v. Burns 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080032 Plaintiff and Respondent, (Super. Ct. Nos. VCM341757, v. VCF352578)

LARRY WELDON BURNS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Poochigian, J. and Meehan, J.

Defendant Larry Weldon Burns pled no contest to offenses in Tulare County Superior Court case Nos. VCM341757 and VCF352578 on the same date. The trial court inadvertently sentenced defendant twice on case No. VCM341757 to slightly different terms of probation. On appeal, he contends that (1) the second sentence was void and (2) the minute order regarding his sentence incorrectly reflects the court’s oral pronouncement of judgment. The People agree, as do we. We strike the sentence pronounced on September 19, 2019, in case No. VCM341757 and direct the trial court to prepare a minute order reflecting the correct sentence as orally pronounced on August 2, 2018. As modified, we affirm. PROCEDURAL SUMMARY On September 30, 2016, the Tulare County District Attorney charged defendant in case No. VCF341757 with felony vandalism (Pen. Code, § 594, subd. (a)).1 On July 3, 2017, the Tulare County District Attorney charged defendant in case No. VCF352578 with possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1), possession of ammunition by a felon (§ 30305, subd. (a)(1); count 2), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3), having a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 4), misdemeanor possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd, (a); count 5), misdemeanor possession of a controlled substance, hydrocodone (Health & Saf. Code, § 11350, subd. (a); count 6), and misdemeanor disobeying a court order (§ 166, subd. (a)(4); count 7). The amended complaint further alleged, as to counts 1 through 4, that defendant had served three prior prison terms (§ 667.5, subd. (b)) and was on bail at the time of the offenses (§ 12022.1).

People v. Burns CA5

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