P. v. Millan

Filed 10/18/06 P. v. Millan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jose A. Milan appeals from the judgment entered after his conviction by a jury of possession for sale of methamphetamine (Health & Saf. Code, § 11378) and possession for sale of cocaine. (Health & Saf. Code, § 11351.) The trial court denied probation and sentenced him to prison for three years, eight months. Appellant meritoriously contends that he is entitled to a new sentencing hearing because the trial court applied an erroneous standard of probation eligibility. We reverse and remand the matter for resentencing.

Factual and Procedural Background

In April 2005 police officers went to appellant's auto repair shop to serve a search warrant. Appellant and five other persons were on the premises. While searching the premises, the officers found methamphetamine and cocaine. A narcotics expert testified that the methamphetamine and cocaine were possessed for the purpose of sale.

Before trial, a pre-conviction probation report was obtained. According to the report, appellant had no criminal history. The report stated, "The defendant is ineligible for probation pursuant to [section] 1203.073(b)(2) [Penal] Code unless the court determines this is an unusual case."^[1]

Section 1203.073, subdivision (b)(2), applies to "[a]ny person who is convicted of violating Section 11378 of the Health and Safety Code by possessing for sale . . . a substance containing 28.5 grams or more of methamphetamine or 57 grams or more of a substance containing methamphetamine." Such a person "may be granted probation only in an unusual case where the interests of justice would be best served. When probation is granted in such a case, the court shall specify on the record and shall enter in the minutes the circumstances indicating that the interests of justice would best be served by such a disposition." (§ 1203.073, subd. (a).) "The existence of any . . . fact which would make a person ineligible for probation under this section shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt . . . or by trial by the court sitting without a jury." (§ 1203.073, subd. (d).)

The information did not allege that appellant had possessed for sale the requisite amount of methamphetamine pursuant to section 1203.073, subdivision (b)(2). Such an allegation was never admitted by appellant or found true by the trier of fact.

At the sentencing hearing, appellant's counsel stated that he wished to proceed on the pre-conviction probation report. Counsel declared, "I believe [the pre-conviction probation report is] correct when it says that [appellant] is ineligible for probation unless the court finds unusual circumstances . . . ." Counsel said that he understood "the court's position of not granting probation on this case because of the amount of drugs involved." Counsel asked the court to impose a 16-month prison sentence.

The trial court stated: "I am going to find [appellant] is not eligible for probation pursuant to [section] 1203.073(b)(2), unless I make extraordinary findings or unusual findings, and I'm not prepared to do that in the facts of our case. The multiple types of narcotics, the multiple co-defendants with substantial amounts of narcotics, would seem to remove this from an unusual situation."

Discussion

Respondent concedes that "section 1203.073 did not apply in the instant case because it was not pled in the information . . . ." Nevertheless, respondent contends that the judgment should not be reversed because "the record demonstrates that the trial court would have denied probation even if it had been aware that Penal Code section 1203.073 did not apply."

This court considered a similar issue in People v. Sherrick (1993) 19 Cal.App.4th 657. In Sherrick the trial court found that the defendant was ineligible for probation based on an inapplicable Penal Code section. We rejected the Attorney General's argument that the error was harmless: "We cannot 'save' the judgment on a harmless error analysis. While the offenses were undoubtedly serious, the trial court's comments unquestionably demonstrate that it was laboring under a false impression of appellant's legal status. Where, as here, '. . . the sentencing court bases its determination to deny probation in significant part upon an erroneous impression of the defendant's legal status, fundamental fairness requires that the defendant be afforded a new hearing and "an informed, intelligent and just decision" on the basis of the facts. [Citation].' [Citation.]" (Id., at p. 661, quoting from People v. Ruiz (1975) 14 Cal.3d 163, 168.) The reasoning of Sherrick applies with equal force to the instant case.

Respondent maintains that the trial court did not abuse its discretion in denying probation. But "[a]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. [Citation.] 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' [Citation.] A court cannot exercise that 'informed discretion' where it is unaware of the scope of its discretionary powers. [Citation.] Here, the court was misinformed as to the scope of its discretionary powers, erroneously believing that section [1203.073, subdivision (b)(2)] limited that discretion. Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate. [Citations.]" (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1248-1249.)

Relying on People v. Coelho (2001) 89 Cal.App.4th 861, respondent argues that a remand for resentencing would be an idle act. Coelho is distinguishable. In Coelho the trial court imposed consecutive prison terms on all of the defendant's 10 convictions. As to four of the convictions, the trial court erroneously believed that it lacked discretion to impose concurrent sentences. Under the "unique circumstances" of Coelho, the appellate court determined that a remand for resentencing would "be an idle and unnecessary, if not pointless, judicial exercise." (Id., at pp. 888-889.) The appellate court considered "it virtually certain the [trial] court would impose 10 consecutive sentences if [it] remanded the matter." (Id., at p. 890.) The appellate court noted that the trial "court [had] stated that it would impose consecutive sentences even if it had discretion over all 10 convictions." (Id., at p. 889.) Here, in contrast to Coelho, the trial court did not state that it would have denied probation even if its discretion had been unconstrained by section 1203.073, subdivision (b)(2).

Disposition

The judgment is reversed and the matter remanded to the trial court for resentencing.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Bruce F. Marrs, Judge

Superior Court County of Los Angeles

______________________________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.