People v. Babineaux
| Decision Date | 09 June 2017 |
| Docket Number | C081105 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY BABINEAUX, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
It is ordered that the opinion filed herein on June 9, 2017, be modified as follows:
1. On page 1, the introductory paragraph is deleted and replaced with the following paragraph:
Defendant Michael Ray Babineaux appeals following his conviction for multiple offenses related to two robberies. He contends: (1) there was not substantial evidence to support one of his convictions for receiving stolen property; (2) his two felony convictions for receiving stolen property (counts thirteen and fourteen) must be reduced to misdemeanors as there was no evidence the value of the stolen property exceeded $950; (3) the imposition of three one-year enhancements for a single prior prison term enhancement was an unauthorized sentence; and (4) the restitution and parole revocation fines must be reduced from $280 to $240. The People properly concede that the receiving stolen property convictions must be reduced to misdemeanors and that the restitution and parole revocation fines must be reduced to $240. In addition, the parties agree that there are clerical errors in the abstracts of judgment that require correction. We will order counts thirteen and fourteen reduced to misdemeanors, order the trial court to correct the restitution and parole revocation fines, and direct the trial court to correct the clerical errors in the abstracts of judgment. The matter is remanded to the trial court for resentencing. In all other respects, we affirm.
2. On page 13, after part IV, add the following part V:
V
Defendant and the People agree there are errors in both the abstracts of judgment for the indeterminate and determinate sentences that should be corrected to conform to the oral pronouncement of judgment. Appellate courts may order correction of abstracts of judgment and minute orders that do not accurately reflect the oral statements of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "[T]he abstract of judgment is not the judgment of conviction and it cannot add to or modify the judgment which it purports to digest or summarize." (People v. Caudillo (1980) 101 Cal.App.3d 122, 126.)
In the abstract of judgment for the indeterminate sentence, box 8 is checked, incorrectly indicating the trial court sentenced defendant pursuant to section 667, subdivisions (b) through (i) or section 1170.12, the three strikes law. As indicated ante,this was not a three strikes case. The oral pronouncement of judgment does not reflect defendant was sentenced under the three strikes law, and having no prior convictions for serious or violent felonies, he was not eligible for such sentencing. Accordingly, the abstract of judgment for the indeterminate sentence must be corrected, leaving box 8 unchecked.
The abstracts of judgment reflect that all of the sentencing enhancements were added to the determinate sentence and none to the indeterminate sentence. This does not reflect the oral pronouncement of judgment. The abstract of judgment for the determinate sentence indicates three prior prison term enhancements under section 667.5, subdivision (b) were added to the determinate sentence. As indicated in part III, ante, and reflected in the oral pronouncement of judgment, defendant's indeterminate sentences for kidnapping to commit a carjacking (counts three and eight) were increased by one year apiece, based on the prior prison term enhancements, and his determinate sentence was increased by one year. Both abstracts of judgment must be corrected.
In addition, the abstract for the determinate sentence reflects the imposition of the one-year arming enhancement (§ 12022, subd. (a)(1)) attached to count three and the 10-year firearm enhancement (§ 12022.53, subd. (b)) attached to count eight. However, counts three and eight are the indeterminate terms, and those enhancements should be reflected on the abstract of judgment for the indeterminate sentence, not the abstract of judgment for the determinate sentence. Both abstracts of judgment must be corrected accordingly.
3. On page 15, the dispositional paragraph is deleted and replaced with the following paragraph:
The convictions for receiving stolen property in counts thirteen and fourteen are reduced to misdemeanors and the matter is remanded for resentencing. The trial court is directed to correct the restitution fine and corresponding parole revocation fine, utilizing the correct statutory minimum of $240. The trial court is also directed to correct theabstracts of judgment as follows: (a) box 8 on the indeterminate sentence abstract shall be unchecked; (b) the abstract of judgment for the determinate sentence must be corrected to show only one prior prison term enhancement and the abstract of judgment for the indeterminate sentence must be corrected to show two prior prison term enhancements; (c) the abstract of judgment for the determinate sentence should delete reference to the one-year arming enhancement attached to count three and the 10-year firearm enhancement attached to count eight, those enhancements should be reflected on the indeterminate sentence abstract of judgment. In all other respects, the judgment is affirmed.
This modification changes the judgment. Respondent's petition for rehearing is denied.
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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.
Defendant Michael Ray Babineaux appeals following his conviction for multiple offenses related to two robberies. He contends: (1) there was not substantial evidence to support one of his convictions for receiving stolen property; (2) his two felony convictions for receiving stolen property (counts thirteen and fourteen) must be reduced to misdemeanors as there was no evidence the value of the stolen property exceeded $950; (3) the imposition of three one-year enhancements for a single prior prison term enhancement was an unauthorized sentence; and (4) the restitution and parole revocation fines must be reduced from $280 to $240. The People properly concede that thereceiving stolen property convictions must be reduced to misdemeanors and that the restitution and parole revocation fines must be reduced to $240. We will order counts thirteen and fourteen reduced to misdemeanors and order the trial court to correct the restitution and parole revocation fines. The matter is remanded to the trial court for resentencing. In all other respects, we affirm.
On April 7 and April 15, 2012, defendant and his nephew, Gregory Babineaux, planned and committed robberies of two different liquor stores. The robberies also involved kidnappings and carjackings.
On April 7, 2012 (counts one to five), defendant, Gregory, and Keith Smith met at a motel and gathered bandanas, gloves, and hoodies to wear during the robberies. They went to a liquor store and waited. Thomas Mason drove his car to the liquor store and when he came out, defendant, wearing a black bandana, shoved a gun in his face. When Mason tried to escape, Smith hit him repeatedly in the head with a crowbar. They forced Mason back into his car and drove to Jessey Food and Liquor. They told Mason to go into the store, tell the clerk the store was being robbed, and to get on the ground. Defendant and Smith went into the store armed and took money, the cash register, cigarettes, and a store employee's wallet. Defendant, Gregory, and Keith drove back to the motel and divided the stolen goods.
On April 15, 2012, Garth Pierce was in a parking lot of a bar when defendant knocked on his window and held a gun to his head. Defendant and Gregory put Pierce in the back of the van and blindfolded him. Defendant drove the van to Hollywood Market, where defendant told Pierce to go into the store, announce the store was being robbed, and tell everyone to get on the floor. After Pierce complied, defendant and Gregory went into the store, each armed with a gun and wearing a black bandana. They took cash, cartons of cigarettes, lighters, and condoms. They also took a purse from a customer,Jessica Araiza. After they left the scene, defendant called Ryan Pearce, a prostitute who worked for him, and had her pick up Gregory.
About 1:45 a.m., sheriff deputies detained Pearce and Gregory in an unrelated traffic stop. Gregory had a loaded magazine clip in his rear pocket, and officers found a nine-millimeter handgun near where he had been standing. A search of Pearce's car revealed a pillowcase with cigarettes, condoms, black bandanas, and gloves. The bandanas and pillowcase were used in the April 15 robbery. Another bandana was found in the front seat area of the car. A DNA profile matching defendant was obtained from the gloves and one of the bandanas. Officers also found items from the purse that had been taken from Jessica Araiza.
About a week later, deputies were looking for Pearce's Chevy Lumina. They saw defendant driving the car, and Pearce was in the passenger seat. The deputies arrested defendant and searched the car. In the trunk of the car, they found cartons of cigarettes, sealed Swisher Sweets cigars in a white pillow case, and a white iPhone. The phone was underneath clothes....
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