People v. Gaitan CA5

Filed 2/3/22 P. v. Gaitan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082666 Plaintiff and Respondent, (Super. Ct. No. PCF358405) v.

ANTHONY ADRIAN GAITAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Franson, Acting P. J., Peña, J. and De Santos, J.

Anthony Adrian Gaitan (defendant) appeals from a judgment of conviction entered upon a negotiated plea. The terms of his plea agreement called for the trial court to “stay” a prior serious felony conviction enhancement. Although a stay of the enhancement is reflected in the sentencing minutes and in the abstract of judgment, the enhancement was not actually imposed or even mentioned during the oral pronouncement of judgment. Defendant requests a correction of the abstract and minutes to show what occurred at sentencing. He did not obtain a certificate of probable cause for this appeal, but one is not required for such clerical errors. However, defendant further claims the trial court lacked authority to stay the enhancement and argues “[r]emand is required with directions to strike the serious felony enhancement.” Although defendant is correct that staying the enhancement was not a valid option, his argument ultimately concerns the validity of the plea bargain and is not cognizable without a certificate of probable cause. If the People were open to a simple correction of the abstract and minutes, the matter would end there. However, in response to both of defendant’s claims, the People argue the trial court’s failure to either impose or strike the enhancement resulted in an unauthorized sentence. They seek to have the matter remanded with “[instructions] to the trial court to impose and stay execution of the enhancement in accordance with the plea agreement.” This effectively forces us to address defendant’s noncertificate issue. We cannot order the trial court to impose an unauthorized sentence, i.e., to stay the prior serious felony conviction enhancement. Nor can we alter the terms of the parties’ plea agreement without their consent by striking the enhancement ourselves or ordering the trial court to strike it. The parties are unwilling to consent to a modification of the judgment. Both sides have identified errors in the judgment and both sides want to have the matter remanded, albeit for misguided reasons. Therefore, despite the evident waste of judicial resources, we reverse the judgment and remand the cause for further proceedings.