Filed 10/21/15 P. v. Gaytan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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
2 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
3 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
4 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.
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Filed 10/21/15 P. v. Gaytan CA4/1 NOT TO BE PUBLISHED IN 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.
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
2 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
3 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
4 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
5 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.
6 II. Section 654
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.
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.
7 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-
8 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.