P. v. Sarmiento
Filed 9/5/12 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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)
ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered
that the opinion filed herein on August 8, 2012, be
1. At the end of the third sentence in the
second full paragraph on page 8, i.e., at the end of the sentence ending “prior
conviction was an unauthorized sentence,” add as footnote 8 the following
footnote, which will require renumbering of all subsequent footnotes:
8 Appellant,
in his briefs on appeal, did not dispute his sentence was unauthorized. In his briefs on appeal, he argued his
sentence for the substantive offense in count 2 should be reduced from a felony
sentence (i.e., the three-year upper prison term imposed by the trial court;
Pen. Code, § 18; former Pen. Code, § 666) to a misdemeanor sentence (i.e.,
a fine, imprisonment in the county jail not exceeding six months, or both; Pen.
Code, § 490). In effect, he correctly
argued the felony sentence on that count was unauthorized, i.e., it could not
lawfully be imposed on count 2 under any circumstance in this case if appellant
had only a single prior conviction, given the fact former Penal Code section
666, subdivision (a) is retroactive.
However, appellant, in the heading of his argument in his petition for
rehearing, now asserts for the first time that, inter alia, his sentence was
“lawful.” We reject the assertion for
the independent reasons it is unsupported by argument or citation to authority
(cf.
1196, 1214, fn. 11; People v. Callegri
(1984) 154 Cal.App.3d 856, 865) and,
for reasons previously discussed, it is erroneous on its merits. Indeed, if appellant’s sentence were lawful,
his appeal would be without merit for that reason alone.
2. On page 9,
in footnote 8, add after the end of the original footnote a new paragraph that
reads:
Appellant, in his petition for rehearing, argues the
prosecutor “sat in complete silence during both the plea and sentencing
proceedings” and “failed to file an appeal from the judgment”; therefore, the
actions of this court in allegedly “object[ing],” “craft[ing] the prosecution’s
appeal,” and “order[ing] a remedy the prosecution never even sought” are
overreaching and implicate the separation of powers doctrine. However, first, the prosecutor had no
occasion at the time of the June 21, 2010, plea and sentencing proceedings to
raise any issue concerning former Penal Code section 666, subdivision (a),
since, after all, it was added effective September 9, 2010. Second, because an unauthorized sentence may
be corrected at any time, a reviewing court has inherent authority to correct
that sentence whenever the error is called to the reviewing court’s attention,
and this is true whether or not the prosecutor objected below and whether or
not the People appealed. (
849, 852-854; In re
Sandel (1966)
64 Cal.2d 412, 418; People v. Burnett (2004) 116 Cal.App.4th 257, 260-261;
55 Cal.App.4th 797, 810-811, fn. 17; cf. People v. Serrato (1973) 9 Cal.3d 753, 763; contra,
170 Cal.App.3d 164, 167, fn. 1.)
Finally, we reject appellant’s
separation of powers argument for the independent reasons it is unsupported by
argument or citation to authority, and it is predicated on appellant’s
misapprehension of this court’s inherent power to correct unauthorized
sentences (cf. People v. Ayala (2000)
23 Cal.4th 225, 253, 275).
There is no
change in the judgment.
Appellant’s
petition for rehearing is denied.
