Opinion
C055541
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WILLIAMS COLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED
In a single proceeding on October 31, 2005, defendant Timothy William Collins was sentenced in three Nevada County cases to an aggregate prison sentence of eight years eight months, calculated as follows: in case No. SF05-338, he was sentenced to the upper term of four years, plus three years, comprised of one year for each of three prior admitted prison terms (Pen. Code, §§ 666.5, 667.5); in case No. SF05-281, he was sentenced to a one-year state prison term, to be served consecutively; and in case No. SF02-366, he received a consecutive eight-month prison term. Execution of sentence in all three cases was suspended, and defendant was placed on five years probation.
In February 2007, when defendants probation and drug court referral were terminated, he was "resentenced" to a prison term of eight years eight months; the length of the term was identical to his 2005 sentence, but it was comprised of different components: in case No. SF05-338, he was sentenced to the mid-term of three years for violating Vehicle Code section 10851, which the court "enhanced" and doubled by virtue of Penal Code section 667; in case SF05-281, he received a one-year term for violating Vehicle Code section 10851, doubled by virtue of his prior strike (Pen. Code, § 665) to be served consecutively; and in case No. SF02-366, he received a consecutive eight-month prison term for violating Vehicle Code section 2800.2.
On appeal, defendant contends the abstract of judgment improperly reflects that his sentence was enhanced pursuant to Penal Code section 666.5, and asks that we order it to be corrected to reflect the sentence on each case as imposed on October 31, 2005. The People concede the trial court was without power to recalculate the sentence in 2007 when it revoked defendants probation.
The People are correct. When, as here, the trial court has previously imposed sentence but suspended its execution pending a term of probation, the discretion of the court on resentencing is limited by statute: "[I]f the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect." (Pen. Code 1203.2, subd. (c); People v. Howard (1997) 16 Cal.4th 1081, 1087-1088.) This means that "[o]n revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations], subject to possible recall subject to its possible recall under [Penal Code] section 1170, subdivision (d), after defendant has been committed to custody." (People v. Howard, supra, 16 Cal.4th at p. 1088, first italics added, second italics in original.)
DISPOSITION
The matter is remanded to the trial court for resentencing in conformity with sentence imposed in these matters on October 31, 2005. The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We Concur:
DAVIS, Acting P.J.
HULL, J. --------------- Notes: The facts of his offenses in these cases are irrelevant to the resolution of the issue on appeal.