P. v. Sarmiento
Filed 8/8/12 P. v. Sarmiento CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
CARLOS ANTONIO SARMIENTO,
Defendant
and Appellant.
B235420
(Los
Angeles County
Super. Ct.
No. SA074447)
APPEAL
from an order revoking the suspension of execution of sentence of the Superior
Court of
County, Joseph Brandolino, Judge. Vacated and remanded.
Lea
Rappaport Geller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and
Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Carlos Antonio
Sarmiento appeals from the order revoking the suspension of the execution of
his four-year prison sentence previously imposed following his plea of no
contest to petty theft with a prior
conviction (former Pen. Code, § 666; count 2) with an admission he
suffered a prior felony conviction for which he served a separate prison term
(Pen. Code, § 667.5, subd. (b)). We will
vacate the above order and related orders, and remand the matter for resentencing.
The record reflects that on May 20, 2010,
appellant entered, and stole merchandise from, a West
Hollywood store.
Appellant claims former Penal Code section 666,
subdivision (a), enacted by the Legislature after he committed the present
theft offense, retroactively applies to said offense with the result the matter
must be remanded with directions to the trial court to reduce the offense to a
misdemeanor and resentence appellant accordingly.
Subdivision (a), Applies Retroactively; Therefore, Remand for Resentencing Is
Warranted.
1.
Pertinent Facts.
In
the present case, the felony complaint alleged that on or about May 20, 2010, appellant committed
Code, § 459; count 1) and petty theft with a prior conviction (former Pen.
Code, § 666; count 2). The alleged prior
conviction was an August 2008 conviction for a violation of former Penal Code
section 666 in case No. BA341708. The
complaint also alleged appellant, in case No. BA356199, suffered a prior
felony conviction for which he served a separate prison term (Pen. Code, §
667.5, subd. (b)).
On June 21, 2010, the court indicated it had read a preplea report,
and a report from A.I.R. (apparently referring to Assessment Intervention
Resources) reflecting appellant had qualified for a residential drug treatment
program. The court indicated it had
evaluated the present case as warranting either (1) imposition of a low term
prison sentence to be served concurrently with appellant’s sentence for a
parole violation in another case or (2) if appellant wanted to participate in a
six-month drug treatment program, imposition of a four-year prison sentence
with execution suspended, allowing him to participate in said program. The court stated, “So those are his
options. This is an open plea to the
court.” Appellant elected the second
option, and the court indicated it would sentence him pursuant to that option.
The court later indicated
appellant was “going to enter an open plea to the court” and admit his Penal
Code section 667.5, subdivision (b), prior conviction. The court also indicated appellant would be
on supervised probation for three years and the court would allow appellant to
participate in the drug program. The
court advised appellant of various consequences of his pleas and stated that
“in order to accept the court’s offer,” appellant had to waive various constitutional
rights. Appellant subsequently waived
his constitutional rights so he could accept “the court’s offer.”
Based on the May 20, 2010, incident, appellant pled no contest to count 1. The following then occurred: “The Court: To
the charge in count 2, which is a violation of 484 subsection (a) of the Penal
Code which is petty theft with a prior conviction for petty theft, how do you
plead Not guilty or no contest [¶]
The Defendant: No contest.
[¶] The Court: And do you admit
in case No. BA341708 that in August of 2008 you were convicted of a petty theft
with a prior and that you served time in jail as a result of that
conviction [¶] The Defendant: Yes.” The parties concede appellant admitted the
Penal Code section 667.5, subdivision (b), allegation.
The
court later stated, “In regard to this matter, the court is going to utilize
count 2 as the principal term for sentencing.
That’s the petty theft with a prior.
And in regard to that matter, the court has selected the high term as
indicated . . . .” The court also
imposed a one-year term for the Penal Code section 667.5, subdivision (b),
enhancement. The court suspended
execution of sentence on count 2 and placed appellant on supervised probation
for three years on various conditions, including the condition that appellant
complete the drug program. The court later stated that
pursuant to Penal Code section 1385, the court allowed count 1 to be withdrawn
and dismissed because count 1 was a violation of Penal Code section 654.
The
court took the above pleas and admission, imposed but suspended execution of
sentence on count 2, and dismissed count 1, as previously discussed. During those proceedings, neither the trial
court, appellant’s counsel, nor appellant ever referred to the prosecutor, and
the prosecutor remained silent. In fact,
the prosecutor remained silent during the entirety of the June 21, 2010,
proceedings except the prosecutor provided to the court the address of the West
Hollywood store so the court could order appellant to stay away from it.
As
discussed below, effective September 9, 2010, the Legislature added former
Penal Code section 666, subdivision (a), as urgency legislation. In November 2010 and May 2011, appellant
violated probation.
As
a result of the second probation violation, the court, on August 1, 2011,
revoked the suspension of execution of the four-year prison sentence on count 2
in the present case. The court ordered
that the sentence in the present case (case No. SA074447) be served
concurrently with appellant’s concurrent sentences in two other cases (case
Nos. LA067012 & SA075609).
name="_ftnref2" title="">[2] On August 23, 2011, appellant filed in the
present case a notice of appeal, and filed a certificate of probable cause
pertaining to the issue of whether former Penal Code section 666, subdivision
(a), was retroactive.
2.
Appellant
claims as previously indicated. We
partially agree with appellant, i.e., we agree remand for resentencing is
appropriate. At the time of appellant’s
May 20, 2010, offense, former Penal Code section 666, made petty theft with a
qualifying prior theft-related conviction (hereafter, prior conviction)
punishable by, inter alia, imprisonment in state prison with the result the
offense was a felony.
name="_ftnref3" title="">[3] If a defendant committed petty theft, one or
more prior convictions triggered application of former Penal Code section 666.
However, effective September 9, 2010, the Legislature
added former Penal Code section 666, subdivision (a), as urgency legislation.
felony if, and only if, the defendant had three or more prior convictions.
added by Stats. 2010, ch. 219 § 15 (AB 1844), eff. Sept. 9, 2010.) “Clearly, new subdivision (a) of section 666
requires proof of at least three prior convictions, not just one, . . .” (People v. Vinson (2011) 193 Cal.App.4th 1190, 1194 (
more prior convictions, petty theft was a misdemeanor. (Pen. Code, §§ 17, subd. (a), 490; former
Pen. Code, § 666, subd. (a).)
applied retroactively to cases not yet final when the September 9, 2010,
amendment became effective. (
1193.) The present case is such a
case. Respondent concedes it appears
former Penal Code section 666, subdivision (a), was retroactive. We accept the concession. We hold former Penal Code section 666,
subdivision (a), applied retroactively to appellant’s offense.
The remaining issue is the
impact of the above holding on this case.
At the outset, we distinguish two dispositional schemes: an open plea
and an indicated sentence.
name="_ftnref6" title="">[6] “An open plea is one under which the
defendant is not offered any promises.
[Citation.] In other words, the
defendant ‘plead[s] unconditionally,
admitting all charges and exposing himself to the maximum possible sentence if
the court later chose to impose it.’
[Citation.]” (
374, 381, fn. 4, italics added.)
An indicated sentence is a
trial court indication of the unbargained-for sentence that the court would
impose whether the defendant pled guilty or went to trial, and that the court
will, if a given set of facts is confirmed, impose in the exercise of its
sentencing discretion upon a plea of guilty to all charges and upon an
admission to all allegations. The
validity of an indicated sentence does not depend upon prosecutorial agreement
therewith. A guilty plea based on an indicated
sentence is a conditional plea of
guilty, i.e., a guilty plea entered on the condition the indicated sentence
will be imposed. (People v. Feyrer (2010) 48 Cal.4th 426, 434-435, fn. 6;
190 Cal.App.4th 907, 910, 916; People
v. Lopez (1993) 21 Cal.App.4th
225, 230; People v. Superior Court
(Ramos) (1991) 235 Cal.App.3d 1261, 1264-1265, 1270-1271
(Felmann) (1976) 59 Cal.App.3d 270, 276.) We determine the nature of a dispositional
scheme; the trial court’s characterization of it is not controlling. (Cf. Ramos,
supra, 235 Cal.App.3d at pp. 1264, 1266-1267.)
We have set forth the
pertinent facts of the June 21, 2010, dispositional scheme. Although at times the trial court on that
date characterized the dispositional scheme as an open plea, this case did not
involve open pleas. Once appellant, on
that date, elected the second option presented by the court and the court
indicated it would sentence appellant pursuant to that option, the
appellant would plead to, and admit, everything, consisted of conditional pleas
of guilty or no contest to counts 1 and 2, and a conditional admission of the
Penal Code section 667.5, subdivision (b) enhancement allegation, pursuant to
an indicated sentence the terms of which included the condition that the trial
court impose a four-year prison sentence.
Under former Penal Code
section 666, in effect at the time appellant committed his petty theft, a prior
conviction was not an element of a former section 666 “offense” but merely
served to elevate that offense from a misdemeanor to a felony. (People v. Bouzas (1991)
53 Cal.3d 467, 474-480 (Bouzas).) That is, “[former Penal Code] section 666
establishe[d] a penalty, not a substantive ‘offense.’ ” (Bouzas,
supra, 53 Cal.3d at p. 478.)
face, [former] section 666 is a sentence-enhancing statute, not a substantive
‘offense’ statute.” (
differently as to former section 666, subdivision (a).
Based on the former Penal
Code section 666, when appellant committed the petty theft at issue in count 2,
that petty theft, with his single
prior conviction (in case No. BA341708), was a felony. However, under former section 666, subdivision
(a), petty theft with a single prior
conviction is not a felony. Moreover, the fact former subdivision (a), is
retroactive compels the conclusion the felony
penalty the trial court imposed on June 21, 2010, and executed on August 1,
2011, on count 2 for petty theft with a single
prior conviction was an unauthorized sentence.
An unauthorized sentence may be corrected at any time. (People
v. Huff (1990) 223 Cal.App.3d 1100, 1106.)
The parties do not dispute
the court imposed an unauthorized sentence on June 21, 2010, by imposing, based
on a single prior conviction, a felony sentence on count 2; the issue is the
remedy. Appellant requests we remand the
matter with directions to the trial court to reduce appellant’s conviction on
count 2 to a misdemeanor. This would be
the appropriate sentence on that count under former Penal Code section 666,
subdivision (a), if, as to count 2, appellant was convicted of petty theft with
a single prior conviction. However,
former section 666, subdivision (a) is retroactive; therefore, the People must
have an opportunity to prove three or more prior convictions in an effort to
elevate the matter from a misdemeanor to a felony. We will remand the matter to permit the
People to prove, as to count 2, said prior convictions, i.e., to prove prior
convictions in addition to the single prior conviction (in case No. BA341708)
which already stands admitted by appellant.
Moreover, there is
no dispute that, before the court on June 21, 2010, indicated that pursuant to
Penal Code section 1385, the court in its discretion would allow count 1 to be
withdrawn and dismissed because count 1 was a violation of Penal Code section
654, appellant stood properly convicted on that count based on his commission
of second degree burglary. There is also
no dispute that the court in the present case was entitled to sentence
appellant pursuant to Penal Code section 667.5, subdivision (b), and entitled
to sentence him on his two other cases (case Nos. LA067012 & SA075609).
The court’s
sentencing scheme with respect to all of the above matters suggests it was
interrelated and that the court might have reached a different disposition as
to these matters if the court had known that petty theft with a single prior
conviction was a misdemeanor. Accordingly,
we will vacate appellant’s sentences in the present case and the two other
cases, and remand for resentencing. (See
People v. Kelly
(1999) 72 Cal.App.4th 842, 844-847; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458.)
We express no opinion as to (1) whether Penal Code section 654 bars multiple
punishment on counts 1 and 2, (2) whether the People should seek to prove
additional prior convictions as to count 2 to elevate the petty theft to a
felony, (3) how the court should resentence appellant in the present case
and/or appellant’s two other cases (case Nos. LA067012 & SA075609),
and/or (4) what any component of the resentence should be.
The trial court’s August 1, 2011, order revoking the suspension of
execution of sentence on count 2 in the present case (case No. SA074447), and
the trial court’s August 1, 2011, sentences in case Nos. LA067012 and SA075609,
are vacated; appellant’s June 21, 2010, sentence (imposed with execution
thereof suspended) in the present case is vacated; the court’s June 21, 2010,
order allowing appellant’s conviction for second degree burglary (count 1) to
be withdrawn and dismissed is vacated and that conviction stands reinstated;
and the matter is remanded to permit the People to prove additional prior theft-related
convictions as to count 2 to elevate the petty theft at issue in that count to
a felony, and for resentencing in the present case (case No. SA074447) and case
Nos. LA067012 and SA075609, consistent with this opinion.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH,
J.
name="_ftn1" title="">[1]
In particular, after appellant
and his counsel had an unreported conference, appellant’s counsel represented
as follows. Appellant had spoken to his
counsel in another case in which appellant had been placed on parole (the
parole case). Appellant’s immigration
hold and parole hold could be lifted if the present court made the order “for
the alternative sentence which includes the six-month rehab.” Appellant needed a copy of that order to show
to his counsel in the parole case.
The
court in the present case indicated it would provide a copy of the above
order. The following then occurred:
“[The Court]: My question to your client, I want him to understand that he’s
going to be on supervised probation, and instead of 16 months, if he violates
probation he’s going to do four years.
So I want to be sure he’s serious about this because that’s exactly what
I intend to do if he steals again.
[¶] The Defendant: Okay.”
to case No. LA067012, the court in the
present case sentenced appellant to prison for the low term of 16 months. As to case No. SA075609, the court in the
present case sentenced appellant to prison for four years, consisting of
a three-year upper term for the substantive offense, plus one year for a Penal
Code section 667.5, subdivision (b), enhancement.
