P. v. Roleder

 

 

 

 

 

 

 

 

Filed 8/26/13  P. v. Roleder CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Tehama)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JACOB JOHN ROLEDER,                           Defendant and Appellant.

C072524   (Super. Ct. No. NCR72455)

 

 

            Defendant
pleaded guilty to one count of inflicting corporal injury on a cohabitant, a
felony, in violation of Penal Codehref="#_ftn1"
name="_ftnref1" title="">[1]
section 273.5, subdivision (a) and received probation.  When he ultimately violated probation and was
sentenced, the trial court imposed
“the midterm of four years.”

            Defendant
contends, and the People concede, that the trial court considered an incorrect
sentencing triad for defendant’s crime when it imposed a midterm sentence of
four years in prison for a violation of section 273.5, subdivision (a).  We agree and shall remand the matter for
resentencing. 

            Section
273.5, subdivision (a) provides that the punishment for infliction of felony
corporal injury on a cohabitant shall be punished by imprisonment for two,
three or four years.  The written change
of plea agreement and the court’s oral advisement at the time of defendant’s
plea both correctly informed defendant that the maximum penalty for the offense of conviction was four years in
prison.

            During
proceedings related to defendant’s alleged probation violations, the court
several times expressed its belief that the maximum possible sentence to which
defendant was exposed by virtue of his conviction was five years.  This was not correct.  When it ultimately revoked defendant’s
probation and was preparing to sentence him to prison, the court said, “I have
difficulty in deciding whether it should be the mitigated term or the midterm”
and, after further discussion, announced it had “selected the midterm of four
years.” 

            Because the
record reflects that the trial court either misunderstood the scope of its
sentencing discretion, or failed to exercise its discretion, it abused its
discretion when sentencing defendant. 
(§ 1170, subd. (b); see People
v. Sandoval (2007) 41 Cal.4th 825, 847-848.)  We must remand the case for resentencing, at
which time the trial court must consider the appropriate triad, make its
sentence choice, and place its statement of reasons on the record.  (§ 1170, subd. (b).)

>DISPOSITION

            The
judgment is reversed and the matter is remanded for resentencing in accordance
with this opinion.

 

                                                                                          DUARTE                    , J.

 

We concur:

 

              MAURO                          , Acting P. J.

 

 

              MURRAY                       , J.