Opinion
C084797
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. KODY JOE SPOTTED BEAR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16F5315)
Defendant Kody Joe Spotted Bear pleaded no contest to causing bodily injury to another person while driving with a blood-alcohol content of 0.08 percent or higher, within 10 years of two other driving under the influence (DUI) convictions. (Veh. Code, §§ 23153, subd. (b), 23566, subd. (a).) He also admitted the allegation that his blood-alcohol content was 0.15 percent or higher. (§ 23578.) The trial court suspended imposition of sentence and placed him on formal probation for a term of five years with various terms and conditions, including that he complete an 18-month DUI program and serve 364 days in county jail.
Undesignated statutory references are to the Vehicle Code.
On appeal, defendant's sole contention is that the matter must be remanded for resentencing because the trial court erroneously believed that it did not have discretion to impose less than 364 days in county jail. The People agree. We will remand for resentencing but otherwise affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report. At the change of plea hearing, defendant stipulated that the factual basis for his plea is set forth in Redding Police Department report No. 16-43403. The facts of the offense in the probation report are a summary of Redding Police Department report No. 16-43403.
At 9:47 p.m. on June 19, 2016, Officer Provencio of the Redding Police Department was dispatched to the scene of an automobile collision. After he arrived, he learned that defendant had run a red light and collided with another vehicle. The driver of the other vehicle was injured; she had pain in her neck, abdomen, and chest. She also had extensive bruising on the right side of her body and a red mark on her forehead. She was taken to the hospital for treatment.
The probation report does not provide Officer Provencio's first name. --------
Defendant admitted that he was not paying attention when he collided with the other vehicle. He claimed he was "daydreaming." His eyes were watery, his speech was slurred, and his breath and person smelled like alcohol. Upon questioning, defendant stated he had consumed beer earlier in the day and "felt drunk." A records check revealed he had two prior DUI's.
After defendant failed a series of field sobriety tests, he submitted a breath test. The test, which was administered at 10:21 p.m., indicated that his blood-alcohol level was 0.223 percent. A second test administered two minutes later indicated that his blood-alcohol level was 0.211 percent. Defendant was arrested and taken to the police station. At 10:49 p.m., a third breath test was administered, which indicated that his blood-alcohol level was 0.18 percent.
Pursuant to a written plea agreement, defendant pleaded no contest to causing bodily injury to another person while driving with a blood-alcohol content of 0.08 percent or higher, within 10 years of two other DUI convictions. (§§ 23153, subd. (b), 23566, subd. (a).) He also admitted the allegation that his blood-alcohol content was 0.15 percent or higher. (§ 23578.)
After an extended discussion regarding the appropriate sentence, including the minimum county jail sentence required if defendant was placed on probation, the trial court suspended imposition of sentence and placed defendant on formal probation for a term of five years with various terms and conditions, including that he complete an 18-month DUI program and serve 364 days in county jail. In selecting a county jail term of 364 days, the trial court disagreed with defendant's contention that it had discretion to impose a lesser term of confinement. The court stated that it believed a term of 364 days was the statutorily required minimum term, unless a 30-month DUI program (which was not available in Shasta County) was ordered. The court, however, stayed execution of the custody condition of defendant's probation pending an appeal, and refused to express an opinion as to the appropriate term if it had the discretion to impose a lesser term of confinement. The court explained: "I think [a county jail term of 364 days is] required under the statute. I won't go any further than that. Because if [the case] is appealed and the Third D.C.A. disagrees with me, I want to keep [an] open and a clear mind regarding what the appropriate amount of time would be."
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the matter must be remanded for resentencing because the trial court erroneously believed that it did not have discretion to impose less than 364 days in county jail. The People agree. We accept the People's concession and will remand for resentencing.
In this case, defendant was subject to punishment under section 23566 because he was convicted of violating section 23153 within 10 years of two other DUI convictions. (§ 23566, subd. (a).) As relevant here, section 23568, subdivision (a) provides that if the trial court grants probation to a person punished under section 23566, as here, the court must, as a condition of probation, order the person be confined in the county jail for at least one year. (§ 23568, subd. (a).) However, section 23568, subdivision (b) provides, in relevant part, as follows: "In addition to . . . subdivision (a), if the court grants probation to a person punished under Section 23566, the court shall impose as a condition of probation that the person enroll in and complete . . . an 18-month driving-under-the-influence program . . . or, if available in the county of the person's residence or employment, a 30-month driving-under-the-influence program . . . . In lieu of the minimum term of imprisonment in subdivision (a), the court shall impose as a minimum condition of probation under this subdivision that the person be confined in the county jail for at least 30 days but not more than one year. . . ." (§ 23568, subd. (b), italics added.)
We conclude that remand for resentencing is required. "Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, the record makes clear the trial court erroneously believed that it was statutorily required to impose a county jail term of 364 days under the circumstances of this case. However, the unambiguous language of the applicable statutory text authorized the trial court to impose a lesser term of confinement. The court had the discretion to order defendant to be confined to county jail "for at least 30 days but not more than one year." (§ 23568, subd. (b).) Because there is no ambiguity in the language of the statute, the plain meaning of the language controls. (See Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.)
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for resentencing in accordance with the views expressed herein.
BUTZ, J. We concur: RAYE, P. J. ROBIE, J.