Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCR3898.
RAYE, J.
On July 28, 2000, defendant Rochelle Goldine Marie Hines intervened in an argument between her friend and Paul Johnson. After Johnson pushed or punched defendant, defendant went inside the house, retrieved a knife, and stabbed Johnson in the back.
Faced with a charge of attempted murder, defendant entered a plea, pursuant to People v. West (1970) 3 Cal.3d 595, to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and admitted that she personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). She entered her plea understanding that the maximum term was seven years in state prison.
Neither a charging document nor the entry of plea hearing appeared in the record on appeal. On our own motion, this court ordered the record augmented to include the complaint as amended reflecting the charge and enhancement as well as the reporter’s transcript of the entry of plea hearing. The augmentation did not include the amended complaint or any complaint at all; instead, the augmentation included a copy of the minutes already in the record on appeal, reflecting defendant’s plea to the amended charge and enhancement. Subsequent to this court’s augmentation order and in conjunction with his response to this court’s request for supplemental briefing, defense appellate counsel filed a request for judicial notice of the complaint filed July 31, 2000, and the change of plea form filed September 6, 2000. We grant the request for judicial notice.
On October 20, 2000, the court imposed an aggregate term of six years, that is, the midterm of three years for assault with a deadly weapon plus a consecutive three-year term for personal infliction of great bodily injury. The court suspended execution of the sentence and granted probation for a term of five years subject to certain terms and conditions, including nine months in county jail with permission to enter a drug treatment facility, a $200 fine plus assessments, a $200 restitution fine, and victim restitution.
On February 1, 2002, defendant admitted violating probation in that she failed to report monthly to the probation department, failed to pay fees and fines, and failed to attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) meetings and to complete a drug education program.
On March 15, 2002, the court reinstated defendant on probation subject to an additional 60 days in jail.
A petition filed September 11, 2002, alleged that defendant again violated probation.
On December 6, 2002, defendant admitted violating probation by failing to report to jail as ordered. The court again reinstated defendant on probation subject to an additional 30 days in jail.
A petition filed March 12, 2004, alleged that defendant again violated probation in that she failed to report monthly to the probation department, failed to pay fees and fines, and failed to attend NA and AA meetings. On April 7, 2004, defendant admitted violating probation.
After a diagnostic study, the court reinstated defendant on probation subject to her waiver of all prior custody credits pursuant to People v. Johnson (1978) 82 Cal.App.3d 183.
A petition filed August 3, 2005, alleged that defendant violated probation in that she failed to report monthly to the probation department, failed to provide verification of her attendance at NA meetings, and failed to pay fees and fines.
On April 19, 2006, defendant admitted violating probation.
On May 12, 2006, the court denied continued probation and sentenced defendant to state prison for an aggregate term of four years, that is, the midterm of three years for assault with a deadly weapon plus one year for the personal infliction of great bodily injury enhancement; awarded 65 (57 actual, 8 conduct) days of presentence custody credit; and imposed an $800 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a corresponding $800 parole revocation restitution fine (Pen. Code, § 1202.45).
Defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We requested supplemental briefing on the following: “Did the trial court impose an unauthorized sentence: [¶] (1) in deviating from the sentence originally imposed in October 2000 [citation]? and [¶] (2) in imposing a one-year term rather than a three-year term for the great bodily injury enhancement [citation]?”
Defense appellate counsel and the Attorney General agree that the trial court erred in deviating from the sentence imposed in October 2000 and in imposing a one-year rather than a three-year term for the great bodily injury enhancement. In suspending execution of sentence and granting probation in 2000, the court imposed an aggregate state prison sentence of six years, that is, the midterm of three years for the offense plus three years for the enhancement, an authorized sentence. In 2006 the court imposed an aggregate state prison sentence of four years, that is, the midterm of three years for the offense plus one year for the enhancement. In doing so, the court imposed an unauthorized sentence. Because the court previously imposed an authorized sentence, though it suspended execution, it had no authority to impose a lesser sentence after revoking probation. The court was required to order the previously imposed authorized sentence into effect. (Pen. Code, § 1203.2, subd. (c); Cal. Rules of Court, rule 4.435(b)(2); People v. Howard (1997) 16 Cal.4th 1081, 1084-1088.) We will modify the judgment accordingly.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified, vacating the one-year term imposed for the great bodily injury enhancement and imposing the previously imposed three-year term for the enhancement (§ 12022.7, subd. (a)), for a total prison term of six years. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.