P. v.
Filed 10/17/13 P. v. Beverly CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
IVY BEVERLY,
Defendant and Appellant.
B244011
(Los Angeles
County
Super. Ct.
No. BA305081)
APPEAL from a judgment of the Superior
Court of
County.
Craig J. Mitchell, Jr., Judge. Affirmed and remanded in part.
Richard B.
Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff
and Respondent.
___________________________________
Ivy Beverly
appeals from a judgment that sentences her to four years in state prison on a
probation violation. We remand for the
limited purpose of correcting an unauthorized sentence. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Beverly
lived in a motel with her boyfriend, her 15-year old daughter and her infant
daughter. Beverly
left the infant on a bed in the motel room to take her older daughter to school
after asking her boyfriend to watch the infant.
The baby died after she was found wedged between the bed and a filing
cabinet. On January 3, 2007, Beverly
pled no contest to one count of child
abuse in violation of Penal Code section 273a, subdivision (a) and admitted
to willfully causing a child to suffer unjustifiable pain and injury that
resulted in death pursuant to Penal Code section 12022.95. The trial court imposed and suspended a five
year sentence on the child abuse count. Beverly
was placed on probation subject to various terms and conditions, including that
she serve 365 days in county jail. The
court failed to impose or strike the four year sentencing enhancement under
Penal Code section 12022.95.
On June 30, 2008, Beverly’s
probation was revoked for failure to enroll in mandatory classes. Beverly
admitted to the probation violation and her probation was reinstated with the
modification that she serve an additional 180 days in county jail. Beverly’s
probation was again revoked on September
2, 2011 when she was charged with fraudulent use of an access card
in violation of Penal Code section 484e.
She admitted to the probation violation and the new charge was
dismissed. The trial court sentenced her
to serve the midterm of four years in state prison and ordered to pay various
fines and fees. She was given 783 days
of custody credits, which included 119 actual days, 119 days of
good-time/work-time and 545 days previously served.
On August 21, 2012, Beverly
filed a notice of appeal and a request for a certificate of probable
cause. The request for a
denied. We appointed counsel to
represent Beverly and he filed a
brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) on May 17, 2013. We advised Beverly
the she could file a supplemental brief if she wished. Beverly
submitted a letter brief on September
13, 2013. Among other
things, she noted that she received an “illegal
sentence.†After reviewing the
record pursuant to our obligations under Wende,
we invited supplemental briefing on the whether the trial court’s failure to
impose or strike the four year sentencing enhancement under Penal Code section
12022.95 resulted in an unauthorized sentence and, if so, what course of action
needs to be taken. We found no other
issues.
In
response, the parties concur that it was an unauthorized sentence and suggest
the proper course of action to be a limited remand solely to allow the trial
court to determine whether to impose the enhancement under Penal Code section
12022.95 or exercise its discretion to strike under Penal Code section 1385,
subdivision (a). We agree. (People
v. Solorzano (2007) 153 Cal.App.4th 1026, 1041.)
DISPOSITION
We remand
to the trial court solely to exercise its discretion to strike the sentencing
enhancement allegations under Penal Code section 1385, subdivision (a) or
not. The judgment is otherwise affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.
