Filed 8/9/16 P. v. Vidano 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Siskiyou)
                                                            ----



THE PEOPLE,                                                                                  C076050

                   Plaintiff and Respondent,                                       (Super. Ct. Nos. 13-223,
                                                                                       13-357, 13-468)
         v.

JUAN ANGEL VIDANO,

                   Defendant and Appellant.




         Sentenced to state prison pursuant to a plea agreement, defendant Juan Angel
Vidano contends the matter must be remanded to the trial court to correct errors in the
sentencing procedure and to prepare a corrected abstract of judgment. Because the
judge’s sentencing procedure was contrary to law and the sentence imposed was
inconsistent with the plea agreement, we must set aside defendant’s sentence and remand
for resentencing according to law.


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                   FACTUAL AND PROCEDURAL BACKGROUND
       In case No. 13-223, an information charged defendant with first degree robbery in
concert (count 1; Pen. Code, §§ 211, 213, subd. (a)(1)(A))1 with allegations of personal
infliction of great bodily injury (§ 12022.7, subd. (a)), “street terrorism” (§ 186.22, subd.
(b)(4)), and personal use of a firearm (§ 12022.53, subd. (b)); first degree residential
burglary of an occupied dwelling (count 2; §§ 459, 667.5, subd. (c)(21)); criminal threats
(count 3; § 422); assault with a deadly weapon (count 4; § 245, subd. (a)(1)) with an
allegation of personal use of a deadly or dangerous weapon, a handgun (§ 1192.7, subd.
(c)(23)); knowingly and maliciously dissuading a witness from reporting a crime,
accompanied by force and the threat of force (count 5; § 136.1, subds. (b)(1), (c)(1)) and
with an allegation of witness intimidation (§ 1170.15); false imprisonment (count 6;
§ 236); and “street terrorism” (count 7; § 186.22, subd. (a)). As to counts 1 through 6, it
was alleged that defendant committed the offenses for the benefit of a criminal street
gang, the Norteños. (§ 186.22, subd. (b)(1).) As to counts 2, 3, 5, and 6, it was alleged
that defendant personally used a firearm. (§ 12022.5, subd. (a).)
       In case No. 13-357, a felony complaint charged defendant with solicitation of
murder (count 1; § 653f, subd. (b)), with the allegations that the victim was a witness or
potential witness in case No. 13-223 (§ 1170.15), and that the offense was committed on
behalf of the Norteños (§ 186.22, subd. (b)(1)(A)); and attempting to dissuade a witness
(count 2; § 136.1, subd. (a)(2)), also with allegations that the victim was about to give
evidence in case No. 13-223 and that the offense was committed on behalf of the
Norteños (§§ 1170.15, 186.22, subd. (b)(4)(C)).
       In case No. 13-468, a felony complaint charged defendant with assault by means
likely to produce great bodily injury on a fellow jail inmate (count 1; § 245, subd. (a)(4))




1      Undesignated statutory references are to the Penal Code.

                                              2
and alleged that defendant personally inflicted great bodily injury on the victim
(§ 12022.7, subd. (a)).
       Defendant entered pleas in all three cases on the understanding that he would
receive an aggregate state prison term of 20 years eight months. In case No. 13-223,
defendant pleaded no contest to counts 1 (first degree robbery), 5 (dissuading a witness),
and 7 (street terrorism), and admitted the allegations of firearm use as to count 1 and of
use of force against a material witness as to count 5. In case No. 13-357, he pleaded no
contest to count 1 (solicitation of murder). In case No. 13-468, he pleaded no contest to
count 1 (assault by means likely to produce great bodily injury). The remaining charges
and allegations were dismissed.
       Before taking defendant’s plea, Judge Bill Davis advised defendant the matter
would be referred to the probation department for a report and recommendation, the court
might conclude after reading the report a harsher disposition was appropriate, and if the
court did so defendant could withdraw his plea.
       According to the written plea agreement and the parties’ stipulation at the change
of plea hearing, defendant’s sentence was to be calculated as follows: as to case No. 13-
223, six years (the middle term) on count 1, plus 10 years consecutive for the firearm use
enhancement, plus three years consecutive on count 5, plus eight months (one-third the
middle term) consecutive on count 7; as to case No. 13-468, one year (one-third the
middle term) consecutive on count 1; as to case No. 13-357, six years concurrent on
count 1. The parties also stipulated that the counts pleaded to in case Nos. 13-357 and
13-468 were not strikes.
       The trial court directed the People to document the factual basis for defendant’s
pleas ex parte. The record does not contain any such document, however. We therefore
take the facts from the probation report, which states: In case No. 13-223, on the evening
of February 6, 2013, defendant and the codefendants entered the apartment of J.C. and
L.S.; pointing a gun at the victims, the intruders demanded money, hit J.C. on the head

                                             3
with the gun, took items of personal property, tied up the victims, and threatened to
murder them and their families if they called the police. In case No. 13-357, a
confidential informant told the police on February 11, 2013, that defendant had asked
him to kill the two witnesses in defendant’s case. In case No. 13-468, on April 9, 2013,
at the county jail, defendant and another inmate got into a physical fight; two of the
codefendants, also inmates, joined in, and defendant’s opponent sustained injuries.
                                      DISCUSSION
                                              I
       Defendant contends the trial court failed to pronounce judgment orally as required
by law, but instead improperly “incorporated by reference” a document prepared by the
probation officer. We agree.
       Background
       At the sentencing hearing, Judge Donald R. Langford noted the parties stipulated
to a state prison term of 20 years eight months. The court then stated: “I have before me
a probation department report with the associated recommendations and orders
documents, all of which were received by the Court on January 16th of 2014, and all of
which collectively recommend, consistent with the stipulation at time of plea, a total
aggregate 20-year-eight-month CDCR term, as set forth specifically in the referenced
document, followed by three years of P.R.C.S. or parole.” Having reviewed the report
and finding the recommendation consistent with the parties’ stipulation, the court was
“prepared to move forward in that regard, subject to my consideration of further
comments.”
       Defense counsel objected to the recommended $10,000 restitution fine and asked
the court to impose the statutory minimum fine. (§ 1202.4, subd. (b)(2).) Counsel also
asked the court to waive the cost of the presentence report and the assessment of attorney
fees. The trial court, “engag[ing] the statutory presumption of inability to pay in the



                                             4
foreseeable future,” struck “[paragraphs] 8, 16, and 17” of the recommendations and
orders.2 The court set the restitution fine at $5,000.
       After the court clerk stated that the presentence custody credits had to be “broken
out case by case,” the trial court attributed all the credits to case No. 13-223.
       Defense counsel submitted the matter on the probation report. The trial court
asked counsel: “I . . . always have these two unnumbered paragraphs immediately under
recommendations and orders, and they set out the details of the specific components of
the sentence. If I adopt that by reference, will there be any objection from the defense?”
(Italics added.) Counsel acquiesced in that procedure, and the prosecutor had no
comment.
       The court clerk stated: “I need clarification at the Court’s pleasure. As far as the
consecutive ten-year term pursuant to three different 12022 code sections, I have to
specify which code section that ten years applies to on the abstract.” According to the
reporter’s transcript, the trial court and counsel agreed the applicable section was
“22.53(b)(e)(1)(a) [sic].”3
       The court clerk stated: “I also need clarification of the consecutive terms or even
concurrent terms, if they are upper, mid, or lower. I presume the consecutives are all
mid, but I don’t know.” After the trial court and counsel discussed what was in the
probation report, the court explained that “[t]he one-year consecutive is one-third the
midterm for the P.C. 245(a)(4),” “[t]he eight months for the P.C. 186.22(a) is one-third
the midterm,” and the sentence on section 653f, subdivision (b), is “two years. It’s one-



2      Paragraph 8 covers the cost of the presentence report. Paragraph 16 covers the
booking fee (Gov. Code, § 29550), which defense counsel did not specifically ask to be
stricken. Paragraph 17 covers reimbursement of appointed counsel fees.
3      The probation report states that the 10-year firearm enhancements applicable to
defendant’s sentence for home invasion robbery (count 1, case No. 13-223) are
sections 12022.53, subdivisions (b), (e)(1)(A) and (B).

                                               5
third the middle term. That’s specified on the top of Page 13 of the report, middle term
of six years, one-third the middle term.”
       After both counsel submitted the matter, the trial court stated:
       “I will impose sentence specifically and verbatim as is set forth and imposed in the
recommendations and orders document, the unnumbered paragraphs first and second
that appear on the face page of the document, the defense having waived the specific
reading, for a total commitment of 20 years and eight months.
       “Further, I will specifically and verbatim order that which is set forth in
Paragraph 1 on the face page as amended on the record, as well as specifically and
verbatim Paragraphs 2 through 7 and 9 and 10 on Page 2 of the cited document,
Paragraph 8 being stricken, as well as verbatim Paragraphs 11 through 15 on Page 3 of
the cited document, Paragraphs 16 and 17 are stricken.
       “I’m executing the sentencing document today’s date, having reviewed it and
found it, as amended, to accurately reflect the orders being entered by the Court today.”
(Italics added.)
       Analysis
       After a conviction, the trial court must pronounce judgment orally in the
defendant’s presence. (§§ 1191, 1193, 1202; People v. Mesa (1975) 14 Cal.3d 466, 471;
People v. Candelaria (1970) 3 Cal.3d 702, 706.) The court clerk’s entry of judgment in
the minutes is not the judgment of conviction, and neither is the abstract of judgment.
(§ 1207; People v. Mesa, supra, at p. 471.) Certainly, the probation report is not.
       “The most fundamental duty of a sentencing court is to state reasons justifying the
sentencing choices it makes. [Citations.]” (People v. Fernandez (1990) 226 Cal.App.3d
669, 678 (Fernandez).) “[M]erely incorporating the probation report by reference
violates the spirit of the sentencing laws and fails to properly explain the basis for any
sentencing choice.” (Id. at p. 679; accord, People v. Pierce (1995) 40 Cal.App.4th 1317,
1320 (Pierce).)

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       Here, the trial court did exactly what Fernandez and Pierce proscribe.
       The Attorney General asserts: “[T]he sentencing court did not merely reference
the probation report. Instead, it appears that, pursuant to the judge’s practice, the order
was prepared by the probation department and clearly delineates the term imposed for
each count and each of the fines and fees imposed in each of appellant’s three cases.
[Citation.] It appears this practice simplified sentencing for a complex case with
numerous charges and allegations. Notably, after imposing sentence and the appropriate
fines and fees, the court took the action of ‘executing the sentencing document’ after
amending it as an accurate reflection of the orders imposed. [Citation.] This order, then,
served as a written memorialization of the court’s oral pronouncement of judgment.”
       We are not persuaded. The Attorney General cites no authority authorizing a trial
court to orally pronounce judgment as required by law (or “a written memorialization” of
that pronouncement) merely by directing the probation department to prepare an order,
then purporting to “execute” that order, without ever stating reasons for its sentencing
choices. A legal proposition asserted without authority is forfeited. (People v. Stanley
(1995) 10 Cal.4th 764, 793.)
       The Attorney General also asserts there is no error because the sentence imposed
was in accordance with the plea agreement’s stipulation and defense counsel stated there
was no basis to appeal. But the Attorney General cites no authority authorizing
imposition of sentence, pursuant to a stipulation, that relieves the trial court of its duty to
pronounce judgment orally, or fail to state reasons for its sentencing choices, and we
know of no such authority. (People v. Stanley, supra, 10 Cal.4th at p. 793.) Judge
Langford utilized what appears to be his standard practice to impose a sentence
inappropriately and merely because the parties stipulated to it. This included a failure to
decide whether the tentative sentence was proper and to state reasons for its decision on
the record.



                                               7
       Finally, the Attorney General argues that defendant’s contention was forfeited and
that any use of an unauthorized procedure was harmless, but we need not reach those
issues because, as we explain later, we must vacate the sentence and remand for other
reasons. On remand, Judge Langford must impose judgment and sentence orally, on the
record, stating his reasons for his sentencing choices.
                                             II
       Defendant contends he was not sentenced consistent with the stipulated sentence
in the plea agreement. He asserts: (1) although both the stipulated sentence in the plea
agreement and the sentence imposed totaled 20 years eight months, there is a material
discrepancy between the plea agreement and the probation department’s
recommendations and orders (adopted by the trial court) as to how the aggregate term
was calculated; and (2) although the aggregate term in the plea agreement is authorized,
the aggregate term in the imposed sentence is unauthorized.
       The Attorney General responds only that defendant’s claim is forfeited “because
[defendant’s] plea bargain was for a stipulated term of 20 years 8 months, and that was
the term imposed.” The Attorney General does not dispute defendant’s contention on the
merits. We conclude the contention is not forfeited and has merit.
       The plea agreement calculated the aggregate term as follows: the six-year middle
term on count 1 (robbery) in case No. 13-223, plus 10 years for the firearm use
enhancement, plus three years (the full middle term) on count 5 (witness dissuasion) in
case No. 13-223, plus one year consecutive for assault in case No. 13-468, plus six years
concurrent for solicitation to murder in case No. 13-357, plus eight months consecutive
on count 7 (street terrorism) in case No. 13-223.
       The probation report’s recommendations and orders, adopted by the trial court in
sentencing, differed materially as follows: instead of the three-year middle term for
witness dissuasion in case No. 13-223, the abstract of judgment states one year (one-third
the middle term) consecutive, and instead of a concurrent six-year term for solicitation to

                                             8
murder in case No. 13-357, the abstract of judgment states a consecutive two-year term
(one-third the middle term). This method of calculating these components of the
aggregate term is shown in the sentencing minute order and the abstract of judgment.
       As defendant points out, the calculation in the plea agreement is correct and the
calculation in the sentence imposed is incorrect. Section 1170.15 provides:
“Notwithstanding subdivision (a) of Section 1170.1, which provides for the imposition of
a subordinate term for a consecutive offense of one-third of the middle term of
imprisonment, if a person is convicted of a felony, and of an additional felony that is a
violation of Section 136.1 or 137 and that was committed against the victim of, or a
witness or potential witness with respect to . . . the first felony, . . . the subordinate term
for each consecutive offense that is a felony described in this section shall consist of the
full middle term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed, and shall include the full term prescribed for any
enhancements imposed for being armed with or using a dangerous or deadly weapon or a
firearm, or for inflicting great bodily injury.” Defendant admitted an allegation under
section 1170.15 in connection with the witness dissuasion count (§ 136.1, subd. (b)(1)) in
case No. 13-223. Therefore, he should have received the full three-year middle term on
that count, as calculated in the plea agreement, along with the six-year concurrent
sentence for solicitation, as component parts of his aggregate 20-year eight-month
sentence. The probation report’s recommendation that defendant receive one-third the
middle term on the witness dissuasion count plus a consecutive two-year term (one-third
the middle term) for solicitation, adopted by the trial court in imposing sentence, ignored
the mandate of section 1170.15. By adopting that recommendation, the court imposed an
unauthorized sentence.
       The Attorney General cites People v. Hester (2000) 22 Cal.4th 290, 295 for the
proposition a defendant may not challenge a sentence imposed in excess of jurisdiction
after pleading guilty in return for a specified sentence. However, as defendant replies,

                                                9
Hester is inapposite because the specified sentence promised defendant in return for his
plea here was not unauthorized or in excess of jurisdiction. Only the sentence the trial
court actually imposed, which did not correspond to the sentence specified in the plea
agreement, was unauthorized.
       On remand, if the trial court imposes the same aggregate term pursuant to the plea
agreement, it is directed to do so as calculated under the plea agreement and within the
lawful framework for imposition of sentence.
                                               III
       Defendant contends that the trial court must properly and orally impose and
itemize all fines and fees on the record as part of its oral pronouncement of judgment.
We agree. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
                                               IV
       Defendant contends the clerk’s minutes must be corrected to accurately reflect
what occurred at the sentencing hearing. According to defendant, the minutes are
erroneous because they “record what appears to be a regularly pronounced sentence,”
rather than correctly showing the trial court merely incorporated the probation
department’s recommendations and orders by reference. We need not address this point.
On remand, the trial court must properly pronounce judgment according to law. We
presume the clerk’s minutes will so reflect.
                                               V
       The parties agree the abstract of judgment must be corrected to show that the 10-
year firearm enhancement on count 1 in case No. 13-223 is imposed under
section 12022.53, subdivision (b), rather than subdivision (e)(1). The trial court is
directed to make this correction on remand.




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                                      DISPOSITION
       Defendant’s convictions are affirmed. The sentence is vacated, and the matter is
remanded with directions to the trial court to resentence defendant consistent with this
opinion.



                                                       NICHOLSON             , J.



We concur:



      BLEASE                , Acting P. J.




      HULL                  , J.




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