P. v. Ubau

Filed 3/9/07 P. v. Ubau CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Alberto Lorenzo Ubau appeals following his no contest plea to spousal abuse. He argues the trial court was without jurisdiction to recall the order placing him on probation and resentence him to state prison. We agree, and reverse the unauthorized prison sentence.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with inflicting corporal injury upon his spouse, after he choked her and she lost consciousness.^[2] Enhancements alleged that he personally inflicted great bodily injury, and that the offense qualified as a serious felony. Defendant pled no contest to one count of spousal abuse, and admitted the great bodily injury and serious felony enhancements.

Defendant was sentenced on August 22, 2006. Defense counsel concurred in a presentence report that recommended probation, but the prosecutor argued for a commitment to state prison. The court observed that with the number of credits [defendant is] going to get, its one of these odd situations where hes almost better off being on probation for a number of years than to simply be paroled out after a short period of time.

The court decided to place defendant on probation and remarked: Its admittedly a close call, but I think ultimately supervising the defendant on hopefully intensive supervision would be most appropriate.^[3] The court suspended the imposition of sentence and defendant was placed on three years of supervised probation, with the condition that he serve one year in county jail. He was granted total presentence credits of 514 days against that sentence. Defendant accepted probation on the designated terms and conditions. The court issued a protective order requiring defendant to stay away from the victim and acknowledged defendants acquiescence to terms and conditions of probation saying: So ordered. The court set a sentencing hearing on a trailing misdemeanor for the following day, and indicated its intention to give defendant concurrent time for that charge.^[4]

Later that morning, the court again called defendants case on the calendar, and said it was going to exercise its discretion under Penal Code section 1170(D) . . . and recall the sentence pronounced earlier this morning and put it over for sentencing. The court indicated it would notify the jail that defendant was not to be released from custody. Through an interpreter, defendant asked if he was being charged with more crimes.^[5]On the following day, the court announced it had made a mistake, and instead of probation would impose a low term of two years in state prison as sought by the district attorney . . . .^[6] Defense counsel objected that the court lacked legal authority to recall the sentence because Penal Code section 1170, subdivision (d)^[7]did not apply. Defendant was not sentenced to state prison and the court did not intend to impose a lesser sentence than imprisonment. The court proceeded to deny probation and instead sentenced defendant to the low term of two years in state prison, with 407 days of credit.^[8] Defendant timely appealed.

DISCUSSION

In a California criminal case, judgment is rendered when sentence is orally pronounced. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3; accord, People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) The trial court loses the power to modify a valid sentence to increase the defendants punishment when (1) the sentence is entered in the minutes, or (2) the defendant begins serving his sentence. (Thomas, supra, at pp. 529-531; accord, People v. Garcia (1995) 32 Cal.App.4th 1756, 1766; cf. Karaman, supra, at p. 339 [the trial court retains jurisdiction to modify the defendants sentence by imposing a lesser sentence at any time prior to commencement of execution of the sentence].)

Here, the court suspended imposition of sentence and placed defendant on probation, then purported to recall the sentence pursuant to section 1170, subdivision (d) and resentenced defendant to state prison.^[9] The court stated it made a mistake, and the minutes indicate the court had second thoughts about the initial sentence. The Attorney General concedes that the court had no authority to act under section 1170, subdivision (d) for two reasons: (1) defendant was not initially sentenced to imprisonment, and (2) the prison term increased his punishment.^[10] But the Attorney General argues that the courts action was instead authorized by sections 1213 and 1215. We disagree.

Section 1213 relates to executing a judgment imposing incarceration in state prison or confinement in a city or county jail as a condition of probation. It has no application in this case because defendants presentence credits exceeded the county jail term imposed as a condition of his probation.^[11] Section 1215 provides that a defendant who is placed on probation shall be placed under the care and supervision of the probation officer of the court committing him or her, until the expiration of the period of probation and the compliance with the terms and conditions of the sentence, or of the suspension thereof.

The Attorney General argues that the probationary order here had to be furnished to the appropriate executive officer to divest the court of jurisdiction. But section 1215 does not state that an order imposing probation must be delivered to an executive officer to become effective.^[12] Nor do Thomas and Karaman compel such a conclusion because those cases dealt with defendants sentenced to confinement in prison or the county jail after probation was rejected, and the manner of execution of those judgments is prescribed by section 1213. (See People v. Karaman, supra, 4 Cal.4th at p. 344 [The manner of executing a judgment sentencing a defendant to imprisonment is prescribed by the Penal Code]; People v.Thomas, supra, 52 Cal.2d at pp. 525-526.) Here, there could be no such order because defendant was placed on probation and granted presentence credits that exceeded the time he was to spend in county jail.

Nor can the courts action reasonably be considered to be correction of a clerical error. (See In re Candelario (1970) 3 Cal.3d 702, 705 [An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion]; see also People v.Karaman, supra, 4 Cal.4th at pp. 345-346, fn. 11.) Surely, this case presented the court with a difficult choice, but once defendant was placed on probation, the trial court was without jurisdiction to recall defendants sentence and increase his punishment. The order must be reversed.

DISPOSITION

The sentence of the trial court imposing a state prison term is reversed. The petition for writ of habeas corpus is dismissed as moot. The case is remanded to the trial court for purposes of entering the original order placing defendant on probation.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P.J.

_________________________

Pollak, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] Defendant has also filed a petition for writ of habeas corpus on the same grounds, that was consolidated with this appeal. The writ petition is dismissed as moot.

^[2] Defendant was also charged with assault by means of force likely to produce great bodily injury, with infliction of great bodily injury, as a serious felony; and two counts of attempting to dissuade a witness from reporting a crime, as a serious felony. Those charges were dismissed when he pled no contest to the count of spousal abuse.

^[3] The court also signed a stay away order.

^[4] But at the time the court took defendants plea to spousal abuse, the People stated they were dismissing the misdemeanor, as provided by the plea bargain, and the court originally set it over to August 22 for dismissal.

^[5] Appellant had been returned to custody after pronouncement of sentence because of the trailing misdemeanor, which was set for the following day and was not related to the case on which he received probation.

^[6] The court explained its concerns: The defendants lack of expression of remorse and his lack of acceptance of responsibility weighed heavily on me, and I cant imagine in retrospect that the defendant can be successful on probation.

^[7] All further statutory references are to the Penal Code.

^[8] The trailing misdemeanor was later dismissed on the prosecutors motion.

^[9] While the terms of probation included service of a year in county jail, defendant received 514 days of presentence credits, and was therefore subject to no further confinement under the courts probation order. Defendant does not contend the sentence was entered in the minutes, which is not surprising since the court purported to recall it on the same day that it was imposed.

^[10] Section 1170, subdivision (d) provides, in pertinent part: When a defendant . . . has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. . . .

^[11] Section 1213 provides, in pertinent part: When a probationary order or a judgment, other than of death, has been pronounced, a copy of the entry of that portion of the probationary order ordering the defendant confined in a city or county jail as a condition of probation, or a copy of the entry of the judgment, or, if the judgment is for imprisonment in a state prison, either a copy of the minute order or an abstract of the judgment as provided in Section 1213.5, certified by the clerk of the court, or by the judge, if there is no clerk, and a Criminal Investigation and Identification (CII) number shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution.

^[12] Defendant makes a good point that: The notion that a sentence of probation is not executed until the defendant is physically placed under the care and supervision of the probation officer ( 1215) inevitably leads to absurd consequences. Since a defendant [sentenced to] probation would not actually be on probation until such time [as] he is delivered to a probation officer, or otherwise assigned to one, there would be no requirement that the defendant comply with probation conditions until that time. Such a state of affairs makes mischief of the statute, and cannot be the intent of the statute.