Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2008041717, John Dobroth, Judge
Richard B. Lennon, under appointment by the Court of Appeal, 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, Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Joseph Beuer appeals from the judgment entered following his guilty plea to one count of petty theft with prior convictions (Pen. Code, § 666) and his admission of out-on-bail and prior prison term allegations (§§ 12022.1; 667.5, subd. (b)). The trial court struck the enhancements and sentenced appellant to a 16-month low term for petty theft, to run consecutive to a sentence of 16 months in another case. The following day, it vacated appellant's sentence and imposed a longer sentence. The parties agree that the court erred by resentencing him to a longer sentence, and by imposing pre-sentence investigation fees. We reverse the sentencing orders and remand for resentencing.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
In April 2008, before charges were filed in the instant case, appellant was convicted of petty theft and possessing narcotics paraphernalia in Ventura County Superior Court, No. 2007048872 ("the 2007 case"). (§ 666; Health & Saf. Code, § 11350, subd. (a).) July 2008, he was placed on probation in the 2007 case, on the condition, among others, that he serve six months in county jail. Before appellant was remanded, the court set a hearing date of October 9, 2008, to consider his request to modify the terms of his probation.
On October 6, 2008, appellant was arrested in the 2008 case. On October 8, the prosecution filed a complaint charging him with petty theft with prior convictions and alleging that he had served two prior prison terms. It later alleged that he committed the 2008 petty theft while out on bail in the 2007 case.
Appellant appeared for the probation modification hearing in the 2007 case on October 9, 2008, and asked the court to terminate probation based on his October 6th arrest. The court revoked his probation and sentenced him to two concurrent 16-month low term sentences in the 2007 case.
On January 5, 2009, in the 2008 case, appellant pled guilty to petty theft with prior convictions and admitted that the out-on-bail and prior prison term allegations were true. The court and the parties agreed to a maximum combined sentence of three years for appellant's 2007 and 2008 cases.
On February 5, 2009, the court sentenced appellant to state prison for a 16-month low term in the 2008 case, consecutive to his sentence in the 2007 case (two concurrent 16-month terms), for an aggregate sentence of 32 months. It struck the enhancements, granted appellant 175 days for presentence custody credits, and ordered him to pay several fees and fines, including restitution.
On February 6, on its own motion, the court vacated its sentencing orders in the 2008 case, and resentenced appellant to state prison for three years, including a two-year middle term, and a one-year prior prison term enhancement. It struck the other enhancements and ordered that the sentences in the 2008 and the 2007 cases be served concurrently, and imposed the same fines and fees as it had imposed on February 5. It did not award appellant presentence custody credits for the 2008 case.
On February 6, before resentencing appellant, the court stated that it was "Nunc pro tunc vacating all previous orders."
DISCUSSION
The parties agree that the court erred when it resentenced appellant on February 6 to a longer sentence than the sentence it had imposed on February 5, and by imposing pre-sentence investigation fees. They are correct.
Section 1170, subdivision (d) authorizes a court to recall a defendant within 120 days after imposing a state prison sentence, vacate the sentence, and resentence him "provided the new sentence, if any, is no greater than the initial sentence." (Ibid.; see also Dix v. Superior Court (1991) 53 Cal.3d 442, 455-456.) The sentence ranges for appellant's petty theft and narcotics crimes are identical (16 months, two or three years). (§§ 18, 666; Health & Saf. Code, § 11350, subd. (b).) If a court orders sentences to run consecutively, it must designate a subordinate term that is equal to one third of the middle term sentence. (§ 1170.1, subd. (a); Cal. Rules of Court, rule 4.452.)
When the court resentenced appellant on February 6, it erred by failing to select an aggregate sentence that was no greater than the initial 32-month sentence. (§ 1170, subd. (d).) It could have resentenced him without imposing a longer sentence. For example, it could have selected a 16-month low term for the 2008 case, and designated two consecutive subordinate terms of eight months (one for each crime) for the 2007 case, for an aggregate sentence of 32 months. It could also have sentenced him to a 16-month low term or a 24-month middle term for the 2008 case, and designated a consecutive, subordinate term of eight months (a concurrent eight-month sentence for each crime) for the 2007 case, for an aggregate sentence of 24 or 32 months. (§ 1170.1, subd. (a); 1170, subd. (a); Cal. Rules of Court, rule 4.452.)
DISPOSITION
We reverse the February 6, 2009, sentencing orders and remand this matter for resentencing. The court shall impose an aggregate sentence of 32 months or less. It shall not impose any pre-sentence investigation fees.
We concur: GILBERT, P.J., PERREN, J.