Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. 2006049124, Bruce A. Clark, Judge
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Tanita Marie Baker was convicted by plea of evading an officer (Veh. Code, § 2800.2, subd. (a) and driving under the influence of alcohol (DUI) with a prior felony DUI conviction (Veh. Code, §§ 23152, subd. (a); 23550.5). The trial court sentenced her to 16 months state prison plus one year on a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). She appeals, contending that the enhancement must be stricken because it was not alleged or admitted when the sentence was first imposed. (§ 667.5, subd. (d).) We affirm.
Unless otherwise stated, all statutory references are to the Penal Code.
Section 667.5, subdivision (d) provides in pertinent part: "The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense." (Emphasis added.)
On January 18, 2007, appellant entered into a negotiated plea for evading an officer and driving under the influence with a prior felony DUI conviction. Appellant admitted the prior felony conviction and acknowledged that she could be sentenced to state prison for three years eight months.
The trial court denied probation on February 22, 2007, and imposed a sentence of 16 months state prison plus one year on a prior prison term enhancement. The case was continued because the enhancement was not alleged.
On February 23, 2007, the prosecution filed an amended complaint to correct the clerical error. After the change of plea form was amended, appellant admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court resentenced appellant to 16 months state prison plus one year on the prior prison term enhancement.
Amended Complaint
Appellant argues that the one year enhancement is unlawful because it was not alleged when she was first sentenced on February 22, 2007. A trial court's jurisdiction to amend a criminal complaint ceases once the sentence is entered. (§ 969.5; see People v. Valladoli (1996) 13 Cal.4th 590, 601-602.) "[T]he filing of a new or amended information solely for the purpose of charging priors [is] prohibited once a defendant has been found guilty and sentenced on the substantive charges." (People v. Martin (1978) 87 Cal.App.3d 573, 579.)
The trial court sentenced appellant and continued the matter so the prosecution could amend the complaint. Appellant consented to the procedure and admitted the enhancement after the complaint was amended.
Assuming that the sentence was void, the trial court was vested with the authority to modify the sentence at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345, fn. 11; People v. Garcia (1995) 32 Cal.App.4th 1756, 1765, fn. 3.) Here the sentencing error was corrected the next day. The trial court stated that appellant "was sentenced yesterday, and she was given a sentence of 28 months. The only way you can get there is if she admits the [section 677.5,] (b) prior. The DA and the defense and I knew about it. They were going to file the [amended] Complaint, but [the prosecutor] didn't."
The trial court was vested with the authority to resentence appellant before execution of the sentence. (See People v. Garcia, supra, 32 Cal.App.4th 1756, 1767 [execution of sentence begins when copy of minute order or abstract of judgment delivered to sheriff].) The oral pronouncement of sentence on February 22, 2007 "was ineffective to commence execution of the first sentence. It merely remanded [appellant] to the sheriff's temporary custody until such time as the court might issue a written minute order or abstract of the first sentence and deliver it to the sheriff. This however, never happened. [Appellant] never began serving the first sentence. Thus, the trial court retained jurisdiction to vacate the first sentence and to resentence [appellant]." (Id., at pp. 1767-1768.)
A defendant has no right to "'plead to the sheet'" and estop the prosecutor from amending the complaint to add a prior felony conviction enhancement. (People v. Sipe (1995) 36 Cal.App.4th 468, 490.) Appellant's reliance on People v. Valladoli, supra, 13 Cal.4th 590, and People v. Tindall (2000) 24 Cal.4th 767 is misplaced. There, the Supreme Court addressed the issue of whether section 969a permitted the prosecution to amend the information after the jury had rendered a verdict on the substantive charges.
Appellant was sentenced February 22, 2007 but the trial court continued the matter. The minute order states: "Case continued to 02/23/07" for sentence clarification and "[b]ail remains as previously set."
On February 23, 2007, appellant was resentenced and remanded to the Department of Corrections. Appellant suffered no prejudice and received the same sentence: 16 months state prison plus one year on the prior prison term enhancement.
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.