Opinion
F076180
12-03-2019
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO PENA, JR., Defendant and Appellant.
Theresa Hsu Schriever, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF269856)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Theresa Hsu Schriever, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
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Santiago Pena, Jr. appeals from an order terminating his probation. After a contested probation violation hearing, he was sentenced to six years in state prison, calculated as three years for possessing methamphetamine for sale, doubled for having a prior strike conviction. On appeal, we conclude the original probation grant was contrary to law. We will vacate the sentence, but not the conviction or true finding for the prior strike conviction. On remand, Pena will have the option to withdraw his plea or proceed to a new sentencing hearing consistent with the law.
BACKGROUND
In 2014, Pena pled no contest to felony possessing methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court, while initially denying Pena's "application for probation," sentenced him to six years in prison calculated as the upper term of three years, doubled for having a prior strike conviction, and then suspended execution of the sentence, and placed Pena on probation for five years with a condition to serve one year in county jail.
Prior to resentencing, the probation department filed a report correctly noting Pena's ineligibility for probation pursuant to Penal Code section 1170.12, subdivision (a)(2).
In 2016, Pena's probation was revoked for various reasons. His probation violation hearing commenced in 2017. To establish the various allegations at the hearing, Pena's new probation officer testified while reading his previous probation officer's report. The trial court unilaterally determined the information constituted business records. When Pena's attorney later objected that the testimony was hearsay, the court overruled the objection, stating "[i]t's a business record," and the testifying officer was "obviously the custodian of records
The court found the probation violation allegations true and imposed the previously suspended sentence. This timely appeal followed.
DISCUSSION
On appeal, Pena argues his Sixth Amendment confrontation rights were violated and the testimony at his hearing was inadmissible hearsay. The People respond the confrontation issue is forfeited, and the records were otherwise admissible hearsay.
We need not decide the issue because, as the People also correctly point out, Pena is not eligible for probation. Even if we agreed with Pena's arguments, we could not provide the relief he seeks because it is unauthorized by law. Because he is not eligible for probation, we cannot order the superior court to place him back on probation.
While the parties now agree the original sentence was unauthorized, they disagree about the correct disposition. The People urge us to affirm the ultimate prison commitment because "it merely set right what should have been the disposition in the first place." Pena argues the People waived "the right to challenge" the sentence, and alternatively, "this court should remand the case for resentencing and/or give [Pena] the option to withdraw his plea."
We agree the case should be remanded for a new sentencing hearing. To the extent Pena can prove his plea and admission were induced by the unauthorized indication of probation, he will have the option to move to withdraw his plea. A. Additional Background
At a pretrial hearing, Pena's attorney announced, "[W]e have a resolution." The judge then said "[h]e just got the deal of the century," and told Pena, "You're getting the deal of the century right now ...." Before Pena pled no contest to the offense or admitted the prior strike conviction, the judge summarized the "deal": "[H]e's gonna plead straight up, indicated sentence six years state prison. That will be suspended, five years felony probation ...." Pena then proceeded to plead no contest to the offense and admit the prior strike conviction. The People opposed the indicated sentence, to which the court replied, "The record will reflect that the People have objected to this [sentence] because the prior indicated sentence by the court was two years state prison."
At Pena's sentencing hearing several months later, the same judge acknowledged,
"The agreement was six years state prison suspended, five years felony probation, one year in the county jail.
"Well, I can't get to the six years unless I impose it pursuant to the strike. Now, if you insist upon the position that all strike cases have to go to state prison, well, then you're going to force me to strike the strike to make this doable.
"If, on the other hand, you don't insist upon this and don't appeal me, that's what I'm going to do if you understand what I'm saying."
Neither the People nor Pena objected. The court then proceeded to sentence Pena as described when he pled no contest and admitted the prior strike. As mentioned, his probation was later revoked and terminated, and he was sentenced to six years in prison. B. Anaylsis
Penal Code sections 667 and 1170.12 both state, in part, "if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior [strike] convictions," "[p]robation for the current offense shall not be granted." Despite these prohibitions, the court granted Pena probation after he pled no contest to a felony and admitted a prior strike conviction.
"An unauthorized sentence is subject to correction when it comes to the attention of the reviewing court." (People v. Tua (2018) 18 Cal.App.5th 1136, 1140 (Tua).) " 'The unauthorized sentence exception is "a narrow exception" to the waiver doctrine that normally applies where the sentence "could not lawfully be imposed under any circumstance in the particular case," for example, "where the court violates mandatory provisions governing the length of confinement." ' " (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 (Turrin).) The "sentence may be corrected at any time." (Ibid.)
Because an unauthorized sentence "may be corrected at any time" and is an exception to the waiver doctrine, the People have not waived their right to challenge the sentence. We now choose to correct the sentence.
This case is similar to People v. John (2019) 36 Cal.App.5th 168. There, the trial court erroneously allowed the defendant to plead guilty and not guilty by reason of insanity. The defendant was sent to the state hospital to restore sanity but later moved to withdraw the pleas. The court denied the motion to withdraw the pleas as untimely. On appeal, the parties agreed the motion was timely and believed "the case should be remanded for the trial court to consider the motion on its merits." (Id. at p. 171-172.)
The court concluded "the root of the problem" in the case was "the unauthorized and illegal plea bargain the trial court should not have accepted in the first place." (John, supra, 36 Cal.App.5th at p. 171.) The court held the "illegal plea bargain" "null and void." (Id. at pp. 175-176.) Rather than simply reversing and remanding the case for a hearing on the motion's merits, "the proper remedy [was] to vacate the plea agreement in its entirety and return the parties to the status quo ante." (Id. at p. 171.)
We believe this case merits a similar result. The trial court's apparent attempt to creatively fashion a resolution to this case was unauthorized. To grant probation to a defendant with a "pled and proved" prior strike conviction, the trial court must choose to exercise its discretion to dismiss the prior strike allegation. The court cannot do what the trial court did in this case: create an unauthorized disposition to meet the goals of all concerned parties. We do not mean to stifle or discourage creativity in our trial courts, especially where it stems from a desire to reach an equitable and fair result. But we cannot affirm a trial court's creativity where it is expressly forbidden by statute.
Nor can we, as the People urge, simply ratify the ultimate six year prison sentence as valid and authorized because "it merely set right what should have been the disposition in the first place." To simply ratify the ultimate result because it is the right disposition ignores the real possibility that Pena's plea and prior strike admission were induced by "the deal of the century." Neither can we ignore the court's original indicated two year prison sentence prior to fashioning the unauthorized sentence.
The court's unilateral and unauthorized indicated sentence is no different than the unauthorized plea bargain in John, supra. "[T]he root of the problem in this case is the unauthorized [sentence] the trial court should not have [indicated] in the first place." (John, supra, 36 Cal.App.5th at p. 171.)
We may correct an unauthorized sentence at any time. (Tua, supra, 18 Cal.App.5th at p. 1140; Turrin, supra, 176 Cal.App.4th at p. 1205.) We will vacate the order sentencing Pena to six years in prison, the order terminating probation, the order granting probation, and the original unauthorized suspended sentence of six years in prison.
DISPOSITION
The sentence is vacated in its entirety and the case is remanded for resentencing consistent with the law and this opinion. Prior to resentencing, Pena will have the option to file a motion to withdraw his plea, within 30 days of the remittitur, where he will bear the burden to prove, with clear and convincing evidence, his plea and admission were induced by the promise of an unauthorized sentence. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123, see People v. Williams (1998) 17 Cal.4th 148, 164 ["appropriate remedy is to vacate the judgment," permitting plea withdrawal, and " 'to proceed in conformity with' the law."].)
We also note, and the parties agree, the abstract of judgment failed to reflect Pena's payment of certain fines and fees. In the event there is a subsequent sentence imposing fines and fees in this case, that judgment should reflect a $1275 payment of fines and fees. --------
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
MEEHAN, J.