People v. Karaman

• Decision Date: 21 December 1992
• Docket Number: No. S022502,S022502
• Citation: 842 P.2d 100,4 Cal.4th 335,14 Cal.Rptr.2d 801
• Court: California Supreme Court
• Parties: , 842 P.2d 100 The PEOPLE, Plaintiff and Appellant, v. Nabil KARAMAN, Defendant and Respondent.

Page 801

14 Cal.Rptr.2d 801

4 Cal.4th 335, 842 P.2d 100

The PEOPLE, Plaintiff and Appellant, v. Nabil KARAMAN, Defendant and Respondent.

No. S022502.

Supreme Court of California In Bank.

Dec. 21, 1992.

Edwin L. Miller, Jr., Dist. Atty., Paul M. Morley, Thomas McArdle and Edward J. Mantyla, Deputy Dist. Attys., for plaintiff and appellant.

John A. Crawford, Jr., San Diego, for defendant and respondent.

GEORGE, Justice.

In this case we must decide whether a trial court loses jurisdiction over a defendant, and the power to modify the defendant's sentence in a manner more favorable to the defendant, where the court has imposed a state prison sentence, has ordered a brief stay of execution of judgment in order to permit the defendant to put his or her personal affairs in order prior to commencement of execution of the sentence, and the clerk of the court has entered that sentence in the minutes of the court.

The district attorney contends the trial court loses jurisdiction to modify the defendant's sentence when the clerk enters the sentence in the minutes. Defendant contends the trial court retains jurisdiction to modify the sentence until the execution of the sentence has commenced. As we shall explain, we conclude that, under these circumstances, the trial court retains jurisdiction to modify the defendant's sentence by imposing a lesser sentence at any time prior to commencement of execution of the sentence. Accordingly, we reverse the judgment of the Court of Appeal and remand the matter to that court with directions to reinstate the judgment incorporating the modified sentence imposed by the trial court on June 15, 1990.

I

At the time of sentencing, the trial court had before it the following information. ¹ Defendant, then 54 years of age, is a naturalized citizen of the United States who emigrated from Israel in 1965. He worked at various jobs for a number of years in this country and, with declining success, owned and operated a series of businesses commencing in 1981 with a pet store, a camper-shell manufacturing business in 1987, and a landscaping and maintenance business in 1988. In March 1989, defendant was convicted in federal court of a misdemeanor count of transporting illegal aliens and was placed on summary probation.

Concerned about meeting the payroll in his most recent business venture, defendant, on December 7, 1989 (the day before the payroll was due), robbed an Alpha Beta grocery store. Defendant effected the robbery by approaching the store manager (who was exiting from the store office), revealing a handgun tucked inside his waistband, grabbing the manager's hand, and directing her back inside the store office. When another employee looked inside the door of the office, defendant revealed the handgun to him as well. The weapon was not loaded, and defendant did not remove it from his waistband during the course of the robbery. The store manager retrieved cash (the exact amount is uncertain but was not more than $950) from the safe and handed it to defendant, who pulled the telephone in the store office from the wall before leaving the premises.

Upon exiting from the grocery store with the cash he had taken, defendant was unable to locate his automobile, even though the name of defendant's business was printed on the side of the vehicle, which was parked in front of the grocery store. Walking in the opposite direction, defendant moments later was apprehended by the police. After the store manager identified him at a curbside lineup and departed, defendant inquired whether that person was the store manager and, upon receiving an affirmative response, told the police to tell her he apologized for committing the robbery.

On December 19, 1989, an information was filed charging defendant with a single count of robbery. (Pen.Code, § 211.) ² Subsequent to defendant's arraignment and entry of a not guilty plea on January 2, 1990, the prosecutor amended the information to include a sentence enhancement for personal use of a firearm. ( § 12022.5 subd. (a).) ³ During the preliminary hearing held on February 22, 1990, the store manager testified that defendant had grabbed her hand (from which a cast had been removed the previous day). Thereafter, the prosecutor filed a second amended information adding an allegation that defendant personally had inflicted great bodily injury. ( § 12022.7.) On March 1, 1990, defendant entered a plea of not guilty to the information as amended, also denying the firearm-use and great-bodily-injury allegations.

On April 27, 1990, the prosecution and the defense agreed that defendant would plead guilty to the charge of robbery and admit the allegation of personal use of a firearm, and that the prosecutor would stipulate to imposition of the low term of two years in state prison on the robbery charge and would dismiss the allegation of great bodily injury. On that date, the trial court granted defendant's motion to withdraw his plea of not guilty, and defendant entered a plea of guilty to the charge of robbery, also admitting the allegation of personal use of a firearm. The trial court also granted the prosecutor's motion to dismiss the allegation of great bodily injury.

Subsequently, the probation officer assigned to defendant's case prepared a report indicating that pursuant to section 1203.06, subdivision (a)(1)(ii), defendant was ineligible for probation, and recommending that defendant be sentenced to state prison for two years on the robbery charge plus two additional years (as that statute then provided) on the section 12022.5, subdivision (a), enhancement for personal use of a firearm. The probation officer's report offered the comment that, had defendant been eligible, he would be an ideal candidate for probation, because he appeared to be remorseful and the offense appeared to be an aberration and out of character. The probation officer recommended, therefore, that defendant be given the shortest possible term of imprisonment.

In his written statement in mitigation filed with the court, defendant acknowledged our decision in People v. Tanner (1979) 24 Cal.3d 514, 519, 156 Cal.Rptr. 450, 596 P.2d 328, holding that "when proper findings invoking the operation of section 1203.06 have been made, the mandatory provisions of that section may not be avoided by employing section 1385 to strike either the allegations of the complaint or the findings of the jury" and thus grant probation. Defendant urged the trial court, nevertheless, to "find a way" to grant probation, or, in the alternative, to employ its discretion pursuant to California Rules of Court, former rule 445, and strike the additional term of imprisonment provided as an enhancement by section 12022.5.

On June 8, 1990, at the probation and sentencing hearing, defense counsel expanded upon his request that the trial court grant probation despite the limitation of section 1203.06. The court, noting defense counsel's invitation "to utilize [section] 1385 in order to go against the dictates of [section] 1203.06," stated: "I do not see [section] 1385 allowing the court to take that approach. If I felt that it did allow that based upon these facts, there is no doubt in my mind that I, in fact, would make this a probationary grant as opposed to a state prison commitment." Also expressly rejecting defense counsel's alternative request to employ its discretion and strike the additional term of imprisonment provided for the personal use of a firearm, the court sentenced defendant to state prison for the low term of two years on the robbery charge, plus two years for personal use of a firearm, to be served consecutively. The court then ordered that execution of the sentence be stayed for one week in order that defendant might assist his family in moving to a new residence. On that same date (the day of the probation and sentencing hearing), the clerk recorded the terms of the sentence and the one-week stay order in the minutes of the court.

On June 15, 1990, at the conclusion of the one-week period in which execution of the sentence was stayed, the trial court, initially on its own motion (in which defendant subsequently joined), held a further hearing. The court observed that at the hearing held on June 8, the court had focused on the issue whether the firearm-use allegation precluded a grant of probation, and, having determined that to be the case, also had concluded the Legislature contemplated a separate, consecutive sentence for the personal firearm-use enhancement. Noting its discretion, pursuant to section 1170.1, subdivision (h), to strike the additional punishment provided by section 12022.5 ⁴ and explaining that perhaps it had not exercised its "entire discretion" at the earlier hearing, the court announced its intent to modify the sentence. The court, over the district attorney's objection that it lacked jurisdiction, ordered that its prior sentence be modified to reflect that the additional punishment provided by section 12022.5, subdivision (a), for personal use of a firearm was stricken, and also ordered that in all other respects the sentence remain the same. The clerk on that date entered the terms of the trial court's oral pronouncements in the minutes, and defendant was remanded to commence serving the two-year term. On June 19, 1990, an abstract of judgment was prepared reflecting the sentence as rendered on June 15, 1990.

The district attorney appealed, ⁵ contending the trial court had (1) no authority to order a stay of execution of the sentence pronounced on June 8, 1990, (2) no valid ground to modify on June 15, 1990, the sentence it had pronounced on June 8, 1990, and (3) no jurisdiction to modify the sentence on June 15, 1990. ⁶

On appeal, the Court of Appeal concluded that the trial court had relinquished jurisdiction over defendant on June 8, 1990, upon entry of the judgment in the minutes of the court, and therefore had no authority to modify the sentence on ...