Filed 2/11/14 P. v. Gutierrez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057817
v. (Super.Ct.No. SWF002769)
CHRISTOPHER MICHAEL OPINION GUTIERREZ,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed as modified.
Robert Booher, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Christopher Michael Gutierrez appeals following an
order revoking his probation and sentencing him to an aggregate term of 12 years in state
prison. On appeal, defendant contends (1) the trial court imposed an unauthorized
sentence in 2008, and (2) the abstract of judgment should be corrected to reflect that he
was convicted of assault by means of force likely to cause great bodily injury rather than
assault with a deadly weapon for count 3. We agree with the parties, and will modify the
judgment.
I
PROCEDURAL BACKGROUND
On January 9, 2004, in case No. SWF002769, an amended information was filed
charging defendant with inflicting corporal injury on a spouse or cohabitant (Pen. Code,
§ 273.5; count 1);1 false imprisonment (§ 236; count 2); assault by means of force likely
to cause great bodily injury (§ 245, subd. (a)(1); count 3); infliction of corporal
punishment or injury on a child resulting in a traumatic condition (§ 273d, subd. (a);
count 4); child abuse (§ 273a, subd. (a); count 5); and dissuading a witness by force or
threat of force (§ 136.1, subd. (c)(1); count 6). The amended information further alleged
that defendant had suffered two prior prison terms (§ 667.5, subd. (b)) and a prior serious
or violent felony strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
On February 19, 2004, defendant pled guilty to counts 1 through 6 as charged; in
exchange for a suspended five-year term and dismissal of the remaining enhancement
1 All future statutory references are to the Penal Code unless otherwise stated.
2 allegations. The trial court thereafter immediately sentenced defendant to five years in
prison, but suspended execution of the sentence, and placed defendant on probation for a
period of five years. The five-year term consisted of the middle term of four years on
count 5, plus a consecutive one-year term on count 1, and concurrent terms on counts 2,
3, 4, and 6.
Defendant subsequently violated the law by possessing controlled substances in
2006 and 2007, and criminal charges were filed in two separate cases. In case
No. RIF136312, defendant was charged with one count of possession of
methamphetamine for sale (Health & Saf. Code, § 11378) with a prior drug sale
conviction (Health & Saf. Code, § 11370.2, subd. (c)). The complaint further alleged that
defendant had suffered two prior serious or violent felony convictions (§§ 667, subds. (c)
& (e)(2)(A), 1170.12, subd. (c)(2)(a)). In case No. RIF136661, defendant was charged
with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and
possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The complaint further
alleged that defendant had suffered two prior serious or violent felony convictions
(§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). Defendant subsequently pled
guilty to the possession of methamphetamine charges in the two cases and admitted one
of the prior conviction allegations. In return, the remaining allegations were dismissed.
On April 29, 2008, the trial court revoked defendant’s probation in this case
for violating the law. Defendant was thereafter sentenced in all three cases to an
aggregate term of 10 years as follows. In case No. RIF136312, to the upper term
3 of three years, doubled to six years under the “Three Strikes” law, plus a consecutive
one-third of the middle term of four months, doubled to eight months under the Three
Strikes law in case No. RIF136661, plus a consecutive total term of three years four
months in case No. SWF002769. Defendant’s sentence in case No. SWF002769
consisted of one-third of the middle term or one year on count 1, 16 months on count 4,
and one year on count 6.
On February 24, 2012, the California Department of Corrections and
Rehabilitation sent a letter notifying the court that defendant’s consecutive term on
count 6 in case No. SWF002769 had to be a full middle term of three years pursuant to
section 1170.15, and therefore defendant should have received three years for that
conviction rather than one year.
On June 5, 2012, the trial court modified defendant’s sentence in case
No. SWF002769 and imposed a full middle term of three years on count 6, for a total
term of five years four months, and an aggregate term for all three cases of 12 years.
This appeal followed.
II
DISCUSSION
A. Sentence in Case No. SWF002769
Defendant contends that the trial court lacked jurisdiction to modify his sentence
in case No. SWF002769 following revocation of his probation. He therefore claims that
his sentence in case No. SWF002769 should have been two years four months with a
4 total aggregate sentence in all three cases of nine years. The People correctly concede the
error.
When a prison sentence is imposed but execution of the sentence is suspended and
a defendant is placed on probation, the trial court must order the original sentence into
full force and effect if probation is revoked. (§ 1203.2; Cal. Rules of Court, rule
4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that
is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1089 (Howard).)
In Howard, our Supreme Court explained, “[o]n revocation of probation, if the
court previously had imposed sentence, the sentencing judge must order that exact
sentence into effect.” (Howard, supra, 16 Cal.4th at p. 1088.) “[I]f the court has actually
imposed sentence, and the defendant has begun a probation term representing acceptance
of that sentence, then the court has no authority, on revoking probation, to impose a lesser
sentence at the precommitment stage.”2 (Id. at p. 1095.)
The Howard court focused on the “important distinction, in probation cases,
between orders suspending imposition of sentence and orders suspending execution of
previously imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) When a court
suspends imposition of a sentence before placing a defendant on probation, the court has
full sentencing discretion upon revoking probation. (Ibid.) By contrast, when a court
imposes a sentence but suspends its execution pending a term of probation, on revocation
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 2/11/14 P. v. Gutierrez CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057817
v. (Super.Ct.No. SWF002769)
CHRISTOPHER MICHAEL OPINION GUTIERREZ,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed as modified.
Robert Booher, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Christopher Michael Gutierrez appeals following an
order revoking his probation and sentencing him to an aggregate term of 12 years in state
prison. On appeal, defendant contends (1) the trial court imposed an unauthorized
sentence in 2008, and (2) the abstract of judgment should be corrected to reflect that he
was convicted of assault by means of force likely to cause great bodily injury rather than
assault with a deadly weapon for count 3. We agree with the parties, and will modify the
judgment.
I
PROCEDURAL BACKGROUND
On January 9, 2004, in case No. SWF002769, an amended information was filed
charging defendant with inflicting corporal injury on a spouse or cohabitant (Pen. Code,
§ 273.5; count 1);1 false imprisonment (§ 236; count 2); assault by means of force likely
to cause great bodily injury (§ 245, subd. (a)(1); count 3); infliction of corporal
punishment or injury on a child resulting in a traumatic condition (§ 273d, subd. (a);
count 4); child abuse (§ 273a, subd. (a); count 5); and dissuading a witness by force or
threat of force (§ 136.1, subd. (c)(1); count 6). The amended information further alleged
that defendant had suffered two prior prison terms (§ 667.5, subd. (b)) and a prior serious
or violent felony strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
On February 19, 2004, defendant pled guilty to counts 1 through 6 as charged; in
exchange for a suspended five-year term and dismissal of the remaining enhancement
1 All future statutory references are to the Penal Code unless otherwise stated.
2 allegations. The trial court thereafter immediately sentenced defendant to five years in
prison, but suspended execution of the sentence, and placed defendant on probation for a
period of five years. The five-year term consisted of the middle term of four years on
count 5, plus a consecutive one-year term on count 1, and concurrent terms on counts 2,
3, 4, and 6.
Defendant subsequently violated the law by possessing controlled substances in
2006 and 2007, and criminal charges were filed in two separate cases. In case
No. RIF136312, defendant was charged with one count of possession of
methamphetamine for sale (Health & Saf. Code, § 11378) with a prior drug sale
conviction (Health & Saf. Code, § 11370.2, subd. (c)). The complaint further alleged that
defendant had suffered two prior serious or violent felony convictions (§§ 667, subds. (c)
& (e)(2)(A), 1170.12, subd. (c)(2)(a)). In case No. RIF136661, defendant was charged
with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and
possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The complaint further
alleged that defendant had suffered two prior serious or violent felony convictions
(§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). Defendant subsequently pled
guilty to the possession of methamphetamine charges in the two cases and admitted one
of the prior conviction allegations. In return, the remaining allegations were dismissed.
On April 29, 2008, the trial court revoked defendant’s probation in this case
for violating the law. Defendant was thereafter sentenced in all three cases to an
aggregate term of 10 years as follows. In case No. RIF136312, to the upper term
3 of three years, doubled to six years under the “Three Strikes” law, plus a consecutive
one-third of the middle term of four months, doubled to eight months under the Three
Strikes law in case No. RIF136661, plus a consecutive total term of three years four
months in case No. SWF002769. Defendant’s sentence in case No. SWF002769
consisted of one-third of the middle term or one year on count 1, 16 months on count 4,
and one year on count 6.
On February 24, 2012, the California Department of Corrections and
Rehabilitation sent a letter notifying the court that defendant’s consecutive term on
count 6 in case No. SWF002769 had to be a full middle term of three years pursuant to
section 1170.15, and therefore defendant should have received three years for that
conviction rather than one year.
On June 5, 2012, the trial court modified defendant’s sentence in case
No. SWF002769 and imposed a full middle term of three years on count 6, for a total
term of five years four months, and an aggregate term for all three cases of 12 years.
This appeal followed.
II
DISCUSSION
A. Sentence in Case No. SWF002769
Defendant contends that the trial court lacked jurisdiction to modify his sentence
in case No. SWF002769 following revocation of his probation. He therefore claims that
his sentence in case No. SWF002769 should have been two years four months with a
4 total aggregate sentence in all three cases of nine years. The People correctly concede the
error.
When a prison sentence is imposed but execution of the sentence is suspended and
a defendant is placed on probation, the trial court must order the original sentence into
full force and effect if probation is revoked. (§ 1203.2; Cal. Rules of Court, rule
4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that
is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1089 (Howard).)
In Howard, our Supreme Court explained, “[o]n revocation of probation, if the
court previously had imposed sentence, the sentencing judge must order that exact
sentence into effect.” (Howard, supra, 16 Cal.4th at p. 1088.) “[I]f the court has actually
imposed sentence, and the defendant has begun a probation term representing acceptance
of that sentence, then the court has no authority, on revoking probation, to impose a lesser
sentence at the precommitment stage.”2 (Id. at p. 1095.)
The Howard court focused on the “important distinction, in probation cases,
between orders suspending imposition of sentence and orders suspending execution of
previously imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) When a court
suspends imposition of a sentence before placing a defendant on probation, the court has
full sentencing discretion upon revoking probation. (Ibid.) By contrast, when a court
imposes a sentence but suspends its execution pending a term of probation, on revocation
2 We note that a trial court exceeds its jurisdiction when it mitigates or aggravates a previously imposed but suspended sentence at the time probation is revoked. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1425-1427 (Ramirez).)
5 and termination of probation the sentencing judge must order that exact sentence into
effect, subject to its possible recall under section 1170, subdivision (d), after the
defendant has been committed to state prison. (Howard, supra, 16 Cal.4th at p. 1088.)
This result is compelled by statutory language in section 1203.2, subdivision (c), which
provides in relevant part that upon termination of probation, “if the judgment has been
pronounced and the execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and effect.”3
The court also has no authority to impose a greater sentence. This principle was
recognized in Ramirez, supra, 159 Cal.App.4th 1412. There, the trial court imposed a
four-year prison sentence but suspended its execution pending a period of probation.
After the defendant was rearrested for a probation violation, the court reinstated
probation but increased the suspended prison term to five years. Citing Howard, supra,
16 Cal.4th 1081, the appellate court concluded that the trial court lacked authority to
increase the four-year suspended sentence. (Ramirez, supra, 159 Cal.App.4th at
pp. 1424-1425.)
3 The Howard court addressed the contention that inclusion of the word “may” in section 1203.2, subdivision (c), affords the court discretion to reduce a previously imposed sentence. (Howard, supra, 16 Cal.4th at p. 1094.) The court rejected the argument, reasoning that the statute merely gives the trial court discretion to revoke or reimpose the suspension of the previously imposed sentence. If suspension is revoked and a prison commitment is ordered, however, the statute mandates that the previously suspended judgment shall “‘be in full force and effect.’” (Ibid.)
6 Here, defendant’s original sentence was imposed pursuant to a negotiated
disposition in which defendant pled guilty in exchange for a suspended five-year term as
a condition of the plea. The trial court accepted the plea bargain and imposed sentence
pursuant to the plea agreement. Having done so, the trial court lacked jurisdiction to
subsequently alter the terms of the plea bargain. (Howard, supra, 16 Cal.4th at p. 1088,
1095; People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) Accordingly, we conclude
the trial court lacked jurisdiction to modify defendant’s sentence in case No. SWF002769
imposing a greater term upon terminating probation. The court was obliged to order into
execution the previously imposed but suspended term subject to computation as noted
below when it sentenced defendant following revocation and termination of probation.
“[W]hen a defendant is sentenced consecutively for multiple convictions, whether
in the same proceeding or in different proceedings, the judgment or aggregate
determinate term is to be viewed as interlocking pieces consisting of a principal term and
one or more subordinate terms. (§ 1170.1, subd. (a).)” (People v. Begnaud (1991) 235
Cal.App.3d 1548, 1552.)
“As a general rule, a sentence lawfully imposed may not be modified once a
defendant is committed and execution of his sentence has begun. [Citations.]”
“However, section 1170.1, subdivision (a) represents a statutory exception to the general
rule . . . .” (People v. Bozeman (1984) 152 Cal.App.3d 504, 507 (Bozeman).)
Section 1170.1, subdivision (a), provides in pertinent part that when a person is
convicted of two or more felonies, “whether in the same proceeding or court or in
7 different proceedings or courts,” and a consecutive term of imprisonment is imposed,
“the aggregate term of imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term imposed for applicable
enhancements . . . . The principal term shall consist of the greatest term of imprisonment
imposed by the court for any of the crimes, including any term imposed for applicable
specific enhancements. The subordinate term for each consecutive offense shall consist
of one-third of the middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is imposed . . . .”
California Rules of Court, rule 4.452, provides, in relevant part, as follows:
“If a determinate sentence is imposed under section 1170.1(a) consecutive to one
or more determinate sentences imposed previously in the same court or in other courts,
the court in the current case must pronounce a single aggregate term, as defined in section
1170.1(a), stating the result of combining the previous and current sentences. In those
situations: [¶] . . . [¶] (3) Discretionary decisions of the judges in the previous cases
may not be changed by the judge in the current case. Such decisions include the decision
to impose one of the three authorized prison terms referred to in section 1170(b), making
counts in prior cases concurrent with or consecutive to each other, or the decision that
circumstances in mitigation or in the furtherance of justice justified striking the
punishment for an enhancement.” (Italics added.)
In the instant matter, when the trial court sentenced defendant to an aggregate
term, it chose defendant’s conviction in case No. RIF136312 as the principal term, and
8 properly treated defendant’s suspended sentence in case No. SWF002769 as the
subordinate term. However, instead of recalculating the initial suspended sentence to
reflect one-third the middle terms for counts 1 and 5, it imposed consecutive one-third
middle terms for counts 1, 4 and 6. The trial court therefore erred, even though the trial
court may not have been aware of how the suspended sentence was initially imposed.
Accordingly, we will modify defendant’s sentence in case No. SWF002769 to a total
term of two years four months (one-third the middle term of four years on count 5 and
one-third the middle term of three years on count 1) to run consecutively to the sentence
in case No. RIF136312. (See In re Harris (1993) 5 Cal.4th 813, 842 [Appellate court
may correct a sentence that is not authorized by law whenever the error comes to its
attention.].)
B. Correction of Abstract of Judgment
Defendant also contends, and the People correctly concede, that the abstract of
judgment in case No. SWF002769 must be amended to reflect that defendant was
convicted of an assault by means of force likely to cause great bodily injury and not an
assault with a deadly weapon. We also agree.
Defendant was charged with, and pled guilty to, assault with force likely to cause
great bodily injury. However, the abstracts of judgment from 2008 and 2012 incorrectly
note defendant’s conviction on count 3 in case No. SWF002769 as an assault with a
deadly weapon. The abstracts of judgment must therefore be corrected accordingly.
9 III
DISPOSITION
The judgment is modified to impose a total term of two years four months (one-
third the middle term of four years on count 5 and one-third the middle term of three
years on count 1) in case No. SWF002769 to run consecutively to the sentence in case
No. RIF136312, for a total aggregate prison term in all three cases of nine years.
Additionally, the abstract of judgment is modified to reflect that defendant was
convicted of assault with force likely to cause great bodily injury on count 3 in case
No. SWF002769.
The clerk of the superior court is directed to prepare an amended abstract of
judgment in accordance with this disposition and forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. We concur:
HOLLENHORST J.
McKINSTER J.