P. v. Mendez
Filed 8/13/09 P. v. Mendez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sutter)
----
THE PEOPLE, Plaintiff and Respondent, v. JORGE MARTINEZ MENDEZ, Defendant and Appellant. | C060799 (Super. Ct. No. CRF080740) |
Defendant Jorge Martinez Mendez appeals the trial courts imposition of five years formal probation conditioned, in part, on service of one year in county jail for his four misdemeanor convictions. He contends imposition of the probationary period constituted an unauthorized sentence. We modify the probationary period to three years and affirm the judgment as modified.
Facts and Proceedings
Because of the nature of the issue raised by defendant, a detailed account of the facts underlying his convictions is unnecessary. The pertinent facts derive from the procedural history of this case.
While driving a commercial big-rig truck, defendant ran a red light and hit a car, killing the driver and seriously injuring the passenger. Instead of stopping immediately, defendant drove another mile or so and finally pulled over in a WinCo parking lot, where he let his girlfriend and her young daughter out of the truck and called 911. When police arrived, defendant lied about having passengers in the truck during the accident, telling them he was alone at the time. Police later learned defendant falsified his driving logbook regarding the number of hours driven prior to the accident.
Defendant was charged with hit and run with bodily injury, a felony (Veh. Code, 20001, subd. (a)--count 1), misdemeanor manslaughter (Pen. Code, 192, subd. (c)(2)--count 2), giving false information to a police officer (Veh. Code, 31--count 3) and failure to comply with California Highway Patrol rules regarding hours of driving service (Veh. Code, 34506, subd. (a)--count 4). It was further alleged, as to count 1, that defendant personally inflicted great bodily injury during commission of that offense.
The trial court granted defendants motion to strike the great bodily injury allegation. Thereafter, defendant pleaded no contest to counts 2, 3 and 4. The court found defendant guilty of count 1 following a bench trial.
After considering the probation report and defendants motion, the court reduced count 1 to a misdemeanor and granted formal probation for a period of five years subject to specified terms and conditions, including time in county jail as follows: one year for count 1, 90 days for count 2 concurrent to the jail term in count 1, one day for count 3 with one day credit for time served, and one day for count 4 with one day credit for time served. The court also revoked defendants driving privileges for one year.
Defendant filed a timely notice of appeal.
Discussion
Defendant contends the trial court erred when it placed him on probation and sentenced him to the maximum term allowed by law.
Penal Code section 1203a provides: In all counties and cities and counties the courts therein, having jurisdiction to impose punishment in misdemeanor cases, shall have the power to refer cases, demand reports and to do and require all things necessary to carry out the purposes of Section 1203 of this code insofar as they are in their nature applicable to misdemeanors. Any such court shall have power to suspend the imposing or the execution of the sentence, and to make and enforce the terms of probation for a period not to exceed three years; provided, that when the maximum sentence provided by law exceeds three years imprisonment, the period during which sentence may be suspended and terms of probation enforced may be for a longer period than three years, but in such instance, not to exceed the maximum time for which sentence of imprisonment might be pronounced.
Defendant claims the trial court imposed a county jail sentence and did not suspend any portion of the sentence. We read the record differently.
At the sentencing hearing, the court granted formal probation for a period of five years. As one of the numerous conditions of probation, the court ordered defendant to serve an aggregate term of one year in county jail and pay specified fees and fines. As noted on the judgment and order granting probation, the court suspend[ed] imposition of sentence when it placed defendant on probation. The grant of probation, in and of itself, was proper. (Pen. Code, 1203a; People v. Ottovich (1974) 41 Cal.App.3d 532, 534.)
However, the Attorney General concedes that the five-year probation term imposed exceeds the maximum allowed under Penal Code section 1203a. We agree and will reduce the probation term to three years. (People v. Ottovich, supra, 41 Cal.App.3d at p. 534; Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 84.)
Disposition
The probation period is modified to three years. As modified, the judgment is affirmed.
HULL, J.
We concur:
SCOTLAND , P. J.
ROBIE , J.
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