Filed 10/21/15 P. v. Gaytan CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066280

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN319565)

JOSE GAYTAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Harry M. Elias, Judge. Reversed and remanded with directions.


         Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da

Silva, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Jose Gaytan of transporting a controlled substance (count 1) and

using a false compartment to smuggle drugs (count 2). The trial court sentenced him to

an aggregate term of 12 years in custody. He appeals, contending: (1) the trial court

failed to exercise its discretion to impose a split sentence and instead followed a court-

wide policy prohibiting split sentences for noncitizens, and (2) his sentence on count 2

must be stayed under Penal Code section 654. (All statutory references are to the Penal

Code.) We conclude the trial court failed to properly exercise its discretion in

considering a split sentence. Accordingly, we reverse Gaytan's sentence and remand the

matter for the trial court to exercise its sentencing discretion. If the trial court confirms

its original sentence, we also remand for the trial court to reconcile its oral

pronouncement of sentence with its minute order and abstract of judgment on the section

654 issue.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Gaytan does not challenge the sufficiency of the evidence to support his

convictions. Accordingly, we merely summarize the facts to provide background for our

discussion of his contentions on appeal.

       In May 2013, border patrol agents observed Gaytan speeding, making unnecessary

lane changes, and acting suspiciously while driving a vehicle on the freeway. The agents

followed Gaytan to a gas station where they spoke with him. Gaytan eventually

consented to a search and canine sniff of his vehicle.

       Border patrol agents searched and found approximately 12 kilograms of

methamphetamine in the dashboard of Gaytan's vehicle. The methamphetamine was

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found in a lead-lined compartment behind the vehicle's glove box. The lead-lined

compartment was a non-factory compartment that was specifically built for the purpose

of hiding narcotics or contraband.

                                       DISCUSSION

                                      I. Split Sentence

A. Additional Background

       Gaytan is a legal permanent resident of the United States. However, Immigrations

and Customs Enforcement placed an immigration hold on him in May 2013.

       The San Diego County Probation Department recommended that Gaytan be

sentenced to a split sentence with four years custody and nine years community

supervision. At Gaytan's initial sentencing hearing, the court postponed sentencing to

inquire with the criminal supervising judge as to whether a split sentence was appropriate

when the defendant is subject to an immigration hold. At a subsequent hearing, the court

stated, "I inquired of the supervising judge . . . whether we do split sentencing when

there's an immigration hold or not. She was pretty—I'd say direct, straightforward, that

we don't."

       The trial court went on to state that although Gaytan is eligible for split sentencing

and it would be appropriate in this type of case, the court's policy prohibits it. The court

explained the rationale behind the policy, which was that in the event Gaytan was

deported, they lose the ability to monitor him. The court noted that it did not necessarily

agree with the rationale and policy, but concluded by stating, "I'm not going to deviate



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from the direction I got directly from the supervising judge though I think it is worthy of

an appeal."

       The court stated that it would impose the low term on both counts, but declined to

strike the allegation that the methamphetamine exceeded 10 kilograms by weight because

"that's part of what makes this case significant." Ultimately, the trial court sentenced

Gaytan to a lengthy term in custody.

B. Analysis

       Gaytan argues the trial court erred and violated his right to due process by

following a court-wide policy precluding split sentences based on immigration status and

instead should have exercised its discretion based on this particular case. We agree.

       "Under the [Criminal Justice] Realignment Act [of 2011], qualified persons

convicted of nonserious and nonviolent felonies are sentenced to county jail instead of

state prison. [Citation.] Trial courts have discretion to commit the defendant to county

jail for a full term in custody, or to impose a hybrid or split sentence consisting of county

jail followed by a period of mandatory supervision." (People v. Catalan (2014) 228

Cal.App.4th 173, 178; § 1170, subd. (h)(5)(B).) We review a trial court's discretionary

sentencing choice for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,

376-377.)

       A trial court's exercise of its sentencing discretion must not be arbitrary or

capricious and must be "consistent with the letter and spirit of the law, and . . . based

upon 'individualized consideration of the offense, the offender, and the public interest.' "

(People v. Sandoval (2007) 41 Cal.4th 825, 847.) A court abuses its discretion where it

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bases its decision on irrelevant circumstances or otherwise relies on an improper basis for

decision. (Ibid.) And, a failure to exercise discretion in some circumstances may be an

abuse of discretion. (See People v. Benn (1972) 7 Cal.3d 530, 534 [new sentencing

hearing granted where the "sentencing judge did not appreciate the scope of [his] judicial

discretion" and thus failed to exercise its discretion in accordance with the applicable law

in granting a motion to strike a prior conviction]; cf. People v. Gillard (1997) 57

Cal.App.4th 136, 165 [remand appropriate where trial court's comments suggested it

might have imposed a lower sentence if aware of its discretion to strike a prior strike

conviction].)

       Here, the trial court's sentencing discretion was not based on " 'individualized

consideration of the offense, the offender, and the public interest.' " (People v. Sandoval,

supra, 41 Cal.4th at p. 847.) Instead, the court followed a categorical court-wide policy

to deny split sentencing when the defendant is subject to an immigration hold and

commented that if it were not for the court-wide policy, it believed a split sentence was

appropriate. "A trial court's authority to impose mandatory supervision, however, is

entirely statutory" (People v. Camp (2015) 233 Cal.App.4th 461, 470), and that statutory

scheme does not automatically preclude split sentencing based on immigration status.

(See § 1170, subd. (h)(3).) "A court may not impose conditions beyond those specified

in the statute, absent compelling necessity." (People v. Cisneros (2000) 84 Cal.App.4th

352, 357 [holding "[t]he trial court erred in ruling that illegal aliens are categorically

excluded from participation in the deferred judgment program for first time drug



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offenders" because "[t]he statutory eligibility standards do not preclude an illegal alien's

participation in the deferral program"].)

       The Attorney General contends the trial court imposed a proper sentence because a

split sentence in this case would have been meaningless as Gaytan would likely be

deported after serving his period of custody. The Attorney General's conclusion that

there is a high probability that Gaytan would be deported was based on the probation

report stating Gaytan was subject to an immigration hold and Gaytan's statement of

mitigation, prepared for the sentencing hearing, in which he stated that he would likely be

deported after his time in custody. There was no other evidence before the court

regarding Gaytan's immigration status or potential deportation. Based on the limited

information in the record, it is unclear whether Gaytan's deportation is highly probable.

Moreover, even if Gaytan would likely be deported after serving his time in custody, the

court made it clear that it was not basing its sentencing decision on that factor. Instead,

the trial court followed a court policy categorically excluding defendants subject to

immigration holds from split sentencing. In doing so, the trial court failed to properly

exercise its discretion.

       Based on the foregoing, we must remand in order for the court to exercise its

sentencing discretion. We note, however, that we express no opinion as to whether the

court should impose a split sentence.




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                                      II. Section 654

A. Additional Background

       When it orally pronounced Gaytan's sentence, the trial court stated that it would

impose the low term of 16 months on the hidden compartment conviction in count 2 and

stay a low term two-year sentence for the transportation conviction in count 1 pursuant to

section 654. The court also imposed a 10-year term for the true finding on the allegation

that Gaytan transported over 10 kilograms of methamphetamine. Accordingly, the court

stated the total sentence was 11 years 4 months.

       The trial court's minutes and abstract of judgment reflect imposition of the longer

two-year sentence on count 1 with the sentence on count 2 running concurrently, rather

than stayed. Those documents also showed a 10-year consecutive sentence for the true

finding on the weight allegation. Accordingly, the minutes and abstract of judgment

reflected an aggregate sentence of 12 years.

B. Analysis

       Gaytan contends his crimes arose from an indivisible course of conduct and thus,

pursuant to section 654, the trial court should have imposed the longer two-year sentence

on count 1 and stayed the sentence on count 2. The Attorney General concedes that

Gaytan's crimes arose from a single course of conduct and that application of section 654

required the trial court to impose the greater sentence of the two crimes. However, the

Attorney General argues that rather than correct the sentence, we should remand the

matter to the trial court to reconcile its incorrect oral pronouncement of sentence, minute

order and abstract of judgment. We agree with the Attorney General.

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        Section 654, subdivision (a) states, "An act or omission that is punishable in

different ways by different provisions of law shall be punished under the provision that

provides for the longest potential term of imprisonment, but in no case shall the act or

omission be punished under more than one provision." (Italics added.) Section 654 bars

double punishment, including concurrent sentences, for a course of conduct constituting

one indivisible transaction with one criminal objective. (People v. Latimer (1993) 5

Cal.4th 1203; People v. Lee (1980) 110 Cal.App.3d 774, 785.) "[W]hen a court

determines that a conviction falls within the meaning of section 654, it is necessary to

impose sentence but to stay the execution of the duplicative sentence . . . pending

completion of service of sentence upon the greater offense, with the stay to become

permanent upon completion of that sentence." (People v. Duff (2010) 50 Cal.4th 787,

796.)

        Where there is a discrepancy between the court's oral pronouncement of judgment

and the minute order or abstract of judgment, the oral pronouncement controls. (People

v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [record of trial court's oral pronouncement

controls over clerk's minute order]; People v. Samaniego (2009) 172 Cal.App.4th 1148,

1183 [oral pronouncement controls over abstract of judgment].)

        Here, the court's oral pronouncement of Gaytan's sentence was erroneous as it

imposed the 16-month sentence on count 2 and stayed the longer two-year sentence on

count 1. Pursuant to section 654, the court was required to impose the longest potential

term of imprisonment and stay the execution of the duplicative sentence. The abstract of

judgment and minute order are incorrect in that they reflect imposition of the longer two-

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year sentence on count 1 with the sentence on count 2 running concurrently, rather than

stayed. While the general rule is that the court's oral pronouncement controls, we do not

apply that rule in this case because there were errors in the oral pronouncement as well as

the abstract of judgment and minute order. Moreover, because we are remanding for the

trial court to exercise its sentencing discretion, this issue may be moot in light of the

court's new sentence. In the event the trial court confirms its original sentence, it shall

correct the discrepancy between its oral pronouncement of sentence, minute order and

abstract of judgment.

                                       DISPOSITION

       Gaytan's sentence is reversed and the matter is remanded for resentencing. On

remand, the court shall exercise its discretion regarding imposition of a split sentence

under section 1170, subdivision (h)(5) after considering the offense, the offender and the

public interest. The trial court shall also correct the section 654 discrepancy between its

oral pronouncement of sentence, minute order and abstract of judgment.




                                                                   MCINTYRE, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.




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