Opinion
B158433.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. RYAN PATRICK CONNORS, Defendant and Appellant.
Ira M. Salzman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Jason C. Tran, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Ryan Patrick Connors, appeals from a judgment resulting from two separate superior court cases. We modify the judgment to impose additional fees, fines, and penalty assessments and increase the amount of defendants presentence credits. Otherwise, we affirm the judgment.
II. DISCUSSION
A. The Prior Prison Term Enhancement In Case No. PA034717
1. Introduction
Defendant argues that on January 16, 2002, the trial court could not lawfully impose a one-year Penal Code section 667.5, subdivision (b) prior prison term enhancement in case No. PA034717. Defendant reasons that the trial court failed to impose the prior prison term enhancement in case No. PA034717 when he was originally placed on probation on September 7, 2000. Defendant argues that after he later violated his probationary grant, the trial court did not have the authority on January 16, 2002, to impose the section 667.5, subdivision (b) one-year prior prison term enhancement. The present case involves two separate felony complaints which were resolved in the former municipal court. We describe the events leading up to the September 7, 2000, probation and sentence hearing in some detail.
2. The events leading up to the September 7, 2000, sentencing hearing case in case No. PA034540
On September 22, 1999, defendant was charged in a felony complaint with cocaine possession in violation of Health and Safety Code section 11350, subdivision (a). It was further alleged that defendant previously served a prior prison term within the meaning of section 667.5, subdivision (b). On October 29, 1999, defendant pled guilty to the charged cocaine possession offense. Pursuant to the provisions of section 1000.2, an order of deferred entry of judgment was entered. On January 11, 2000, the deferred entry of judgment order was revoked. A full probation and sentence report was ordered prepared. On September 7, 2000, defendant was placed on five years probation upon various terms and conditions.
3. The events leading up to the September 7, 2000, sentencing hearing case in case No. PA034717
Case No. PA034717 charged two counts in a felony complaint filed January 11, 2000. In count 1, defendant was charged with driving under the influence of alcohol or drugs as a felony pursuant to Vehicle Code sections 23152, subdivision (a), 23550, and 23550.5. In count 2, defendant was charged with driving with a blood alcohol level of .08 percent or higher as a felony within the meaning of Vehicle Code sections 23152, subdivision (b), 23550, and 23550.5. The two alternative felony-misdemeanors were charged as felonies because of defendants prior Vehicle Code section 23153, subdivision (a) conviction for driving under the influence of alcohol and causing bodily injury in 1994. On February 16, 2000, the date defendant entered his pleas, the felony complaint was amended to allege a section 667.5, subdivision (b) prior prison term enhancement. The enhancement applied to count two of the complaint.
On February 16, 2000, defendant entered a nolo contendere plea in case No. PA034717. As to case No. PA034717, page B-15 of the reporters transcript explicitly states that defendant pled guilty to the charge of driving with a blood alcohol level of over .08 per cent in violation of Vehicle Code section 23152, subdivision (b), the offense charged in count two. Additionally, page B-15 notes that the section 667.5, subdivision (b) prior prison term allegation was added to the felony complaint in case No. PA034717 at that time. On page B-17, the trial court expressly indicated that defendant would receive a four-year, eight-month suspended sentence. The four-year, eight-month suspended sentence consisted of: three years for driving with a blood alcohol level of .08 percent or higher as charged in case No. PA034717; one year as result of the prior prison term enhancement in case No. PA034717; and eight months as a consecutive subordinate term because of the cocaine possession charge in case No. PA034540. On pages B-28 and B-31 of the reporters transcript, defendant admitted that he had served a section 667.5, subdivision (b) prior prison term. When proceedings concluded on February 16, 2000, the trial court had taken no action on count one of the felony complaint, the violation of Vehicle Code section 23152, subdivision (a), driving under the influence of alcohol charge. On February 16, 2000, sentencing was continued until September 7, 2000.
4. The September 7, 2000, sentencing proceeding when defendant was placed on probation in both cases
On September 7, 2000, the trial court called the matter for a probation and sentencing hearing as is reflected at pages C-1 through C-13 of the reporters transcript as to both case Nos. PA034717 and PA034540. The trial court began by explicitly indicating it was sentencing on case No. PA034717. The trial court neglected to sentence on the section 667.5, subdivision (b) prior prison term enhancement. The court then asked, "And remaining counts as to this case, Peoples motion?" The deputy district attorney responded, "To be dismissed 1385." No reference was made to any enhancement; merely a "count." There was a remaining count which had not been resolved until the conclusion of sentencing on September 7, 2000, in case No. PA034717, the alleged Vehicle Code section 23152, subdivision (a) violation. As noted previously, in case No. PA034717, two counts were originally charged. Count one had not been resolved, the driving under the influence charge. Therefore, the oral dismissal request, did not relate to an enhancement allegation but to a count.
The trial court then said, "On the case number PA034540 . . . ." The trial court then proceeded to impose sentence, suspend its execution, and place defendant on probation in case No. PA034540, the cocaine possession charge. When defendant accepted the probation conditions on the cocaine possession charge, it was then the trial court made the statement concerning the "remaining allegations[.]" When defendant was sentenced, the execution of sentence was suspended, and he was placed on probation in case No. PA345540, there was a remaining section 667.5, subdivision (b) allegation which had never been resolved. In other words, there was a remaining allegation in case No. PA034540 which had yet to be resolved. The remaining allegation, a section 667.5, subdivision (b) enhancement as charged in case No. PA034540 was resolved when the trial court granted the section 1385, subdivision (a) motion.
5. The January 16, 2002, state prison sentences
On January 16, 2002, after being found in violation of probation, defendant was sentenced to prison on both cases. At that time, defense counsel argued that the one-year section 667.5, subdivision (b) prior prison term enhancement in case No. PA034717 could not be imposed. Defense counsel reasoned that the trial court neglected to impose the one-year section 667.5, subdivision (b) prior prison term enhancement on September 7, 2000. On appeal, defendant contends that the imposition of the one-year section 667.5, subdivision (b) prior prison term enhancement was error and further constituted a violation of his double jeopardy rights. Specifically, defendant argues that when the trial court dismissed the "remaining allegations" on September 7, 2000, that terminated its power to later impose, on January 16, 2002, the one-year enhancement in case No. PA034717. We reject these contentions.
The California Supreme Court requires in a criminal appeal that we review the record in a light most favorable to the judgment. (People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7, 889 P.2d 541 [""A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown . . ."" (orig. italics)]; accord Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) When viewed in a light most favorable to the judgment, the reference to the "remaining allegations" does not apply to case No. PA034717. Rather, the "remaining allegations" language expressly applied only to case No. PA034540. The trial court had completed the sentencing in case No. PA034717. It was over. The trial court had moved on to case No. PA034540-it expressly said so. There is no explicit evidence that the trial court intended to strike the allegation it was lawfully required to impose. Although the record is ambiguous, when viewed in the light most favorable to the judgment that ultimately was imposed, the reference to the dismissal of the "remaining allegations" did not refer to case No. PA034717, the driving under the influence matter.
The sole remaining question then is whether the trial courts failure to have imposed the one-year section 667.5, subdivision (b) prior prison term enhancement in case No. PA034717 was a legally unauthorized sentence. It was. Because the failure on September 7, 2000, to impose the one-year section 667.5, subdivision (b) prior prison term enhancement in case No. PA034717 was legally unauthorized, the trial court was permitted to correct its jurisdictional error on January 16, 2002, when defendant was sentenced to prison.
On September 7, 2000, the trial court had a duty to impose sentence in accord with the law. (People v. Bradley (1991) 64 Cal.App.4th 386, 390-391; People v. Cattaneo (1990) 217 Cal. App. 3d 1577, 1588-1589, 266 Cal. Rptr. 710; People v. Floyd P. (1988) 198 Cal. App. 3d 608, 612, 244 Cal. Rptr. 269; People v. Superior Court (Himmelsbach) (1986) 186 Cal. App. 3d 524, 537, 230 Cal. Rptr. 890, disapproved on another point in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3, 913 P.2d 458; People v. Santana (1986) 182 Cal. App. 3d 185, 191-192, 227 Cal. Rptr. 51.) The failure to impose or strike an enhancement is a legally unauthorized sentence subject to later judicial correction. (People v. Bradley, supra, 64 Cal.App.4th at pp. 390-392; People v. Irvin (1991) 230 Cal. App. 3d 180, 190, 281 Cal. Rptr. 195; see People v. Bracamonte (2003) 106 Cal.App.4th 704, 711; People v. Campbell (1999) 76 Cal.App.4th 305, 311; People v. Menius (1994) 25 Cal.App.4th 1290, 1295; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) Because it was a legally unauthorized sentence, the trial court on January 16, 2002, had the authority to correct its own jurisdictionally void September 7, 2000, sentence. (People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal. Rptr. 65, 512 P.2d 289, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal. Rptr. 855, 659 P.2d 1144 ["The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement"]; see People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3.) Accordingly, the trial court complied with its legally required sentencing duty when on January 16, 2002, it imposed the mandatory section 667.5, subdivision (b) one-year enhancement.
Additionally, there is no merit to the related double jeopardy contention. Both the United States and California Supreme Courts have held that when a legally unauthorized sentence is imposed, the double jeopardy provisions of the federal and state constitutions are not violated when a more serious lawfully mandated disposition is later imposed. (Bozza v. United States (1947) 330 U.S. 160, 166, 91 L. Ed. 818, 67 S. Ct. 645; People v. Serrato, supra, 9 Cal.3d at pp. 763-764; see United States v. DiFrancesco (1980) 449 U.S. 117, 134-135, 66 L. Ed. 2d 328, 101 S. Ct. 426.) Because the September 7, 2000, failure to impose the section 667.5, subdivision (b) one-year enhancement was legally authorized, its later imposition did not violate the federal or state double jeopardy prohibitions.
Two final points are in order concerning the September 7, 2000, failure to impose the section 667.5, subdivision (b) one-year enhancement. To begin with, the trial court was legally obligated to follow the terms of the plea agreement entered into on February 16, 2000. The trial courts failure to have fully complied with the February 16, 2000, plea bargain was a jurisdictional error in and of itself. (People v. Superior Court (Gifford) 53 Cal.App.4th 1333, 1337; People v. Ames (1989) 213 Cal. App. 3d 1214, 1217, 261 Cal. Rptr. 911.) The trial court was jurisdictionally barred by the terms of the February 16, 2000, plea agreement from neglecting to impose the section 667.5, subdivision (b) one-year prior prison term enhancement. Additionally, there is no merit to the trial courts characterization on January 16, 2002, of its failure to have imposed the section 667.5, subdivision (b) one— year enhancement at the initial September 7, 2000, probation sentence hearing as judicial error. As the foregoing authority consistently holds, the failure to impose a mandatory enhancement is a jurisdictional error.
B. Laboratory Fee
The trial court imposed a legally unauthorized sentence when it explicitly refused on September 7, 2000, to impose the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee plus the applicable section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty enhancements. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Turner (2002) 96 Cal.App.4th 1409, 1413-1414; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) Therefore, the judgment must be modified to impose the Health and Safety Code section 11372.5, subdivision (a) drug laboratory fee plus the applicable section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty enhancements which totaled $ 135 in each case.
C. Presentence Credits
The parties posit three presentence credit issues. First, defendant contends he is entitled to credit for time served in a rehabilitation program. However, defendant waived his right to credit for the time in the residential treatment program. (People v. Johnson (2002) 28 Cal.4th 1050, 1053; see People v. Torres (1997) 52 Cal.App.4th 771, 775.) There is no merit to defendants reliance onPeople v. Tran (2000) 78 Cal.App.4th 383, 385-390. The portion of the Tran decision relied upon by defendant was disapproved of in People v. Johnson, supra, 28 Cal.4th at p. 1057 and footnote 4.
Second, defendant is entitled to additional credits in the cocaine possession case for which an eight-month consecutive sentence was imposed. According to the felony complaint in case No. PA034540, defendant was arrested on September 4, 1999, and posted bail on September 23, 1999. No credits were granted on the subordinate cocaine possession term when defendant was sentenced to prison on January 16, 2002. (When defendant was placed on probation on September 7, 2000, the trial court did order defendant receive credit for time served but specified no amount.) Because he was in county jail between September 4, 1999, and September 23, 1999, defendant is entitled to 20 additional days credit for time served plus 10 days of conduct credits. ( § 2900.5, subd. (b); People v. Cooksey (2002) 95 Cal.App.4th 1407, 1413-1415.) However, defendant would not be entitled to any credit for time on the subordinate term imposed in case No. PA034540 served after his arrest on the driving under the influence charge in case No. PA034717. Defendant received those credits in connection with the principal term imposed for the violation of Vehicle Code section 23152, subdivision (b).
Third, the parties are in agreement that on the principal term, the driving with a .08 percent or higher blood alcohol level charge in case No. PA034717, defendant is entitled to presentence credits of 296 days of actual custody credit plus 148 days of conduct credits for a total of 444 days a presentence custody credits.
D. Fines
First, the trial court neglected to impose the $ 200 section 1202.4, subdivision (b)(1) fines on January 16, 2002. They were imposed on September 7, 2000, when the execution of sentence was suspended. Therefore, they had to be imposed on January 16, 2002. (People v. Howard (1997) 16 Cal.4th 1081, 1088, 946 P.2d 828; People v. Chagolla (1984) 151 Cal. App. 3d 1045, 1047-1050, 199 Cal. Rptr. 181.)
Second, the trial court failed to impose the section 1202.45 parole restitution fines. The trial court had a jurisdictional obligation to impose those fines on January 16, 2002. (People v. Smith (2001) 24 Cal.4th 849, 853-854; People v. Hannah (1999) 73 Cal.App.4th 270, 272-275; see People v. Tillman (2000) 22 Cal.4th 300, 302, 992 P.2d 1109.)
Third, in the cocaine possession case, the trial court on September 7, 2000, imposed a $ 1,000 fine. However, despite the fact that the execution of sentence was suspended on September 7, 2000, the trial court did not impose a $ 1,000 fine plus $ 1,700 in penalty assessments on January 16, 2002. Because the execution of sentence was suspended, the trial court was required to impose the $ 1,000 fine on January 16, 2002. (People v. Howard , supra, 16 Cal.4th at p. 1088; People v. Chagolla, supra, 151 Cal. App. 3d at pp. 1047-1050.) Additionally, the trial court was required to impose the section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. Therefore, in the cocaine possession matter, case No. PA034540, on January 16, 2002, the trial court was required to impose a $ 1,000 fine plus penalty assessments of $ 1,700.
Fourth, on September 7, 2000, in the driving under the influence case, the trial court imposed a mandatory impaired driver fine of $ 390 as required by Vehicle Code sections 23550, subdivision (a) and 23550.5, subdivision (a) plus $ 663 in penalty assessments pursuant to section 1464, subdivision (a) and Government Code section 76000, subdivision (a). At the initial September 7, 2000, sentencing, the trial court correctly imposed the impaired driver fines plus the penalty assessments. The trial courts later failure on January 16, 2002, to impose the mandatory fines plus the penalty assessments likewise was jurisdictional error. (People v. Howard, supra, 16 Cal.4th at p. 1088; People v. Chagolla, supra, 151 Cal. App. 3d at pp. 1047-1050.) Therefore, the judgment must be modified to reflect the impaired driver fine of $ 390 plus $ 663 in penalty assessments.
III. DISPOSITION
In case No. PA034540, the judgment is modified as follows: the $ 50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee is imposed plus $ 85 in penalty assessments; the amount of presentence credits against the subordinate term is modified to grant defendant 30 days of credits which includes 10 days of conduct credits; a $ 200 Penal Code section 1202.4, subdivision (b)(1) restitution fine is imposed; a $ 200 Penal Code section 1202.45 parole restitution fine is imposed and stayed; and a $ 1,000 fine is imposed plus $ 1,700 in penalty assessments. In all other respects, the judgment in case No. PA034540 is affirmed.
In case No. PA034717, the judgment is modified as follows: defendant is to receive 444 days of presentence credits which includes 148 days of conduct credits; a $ 200 Penal Code section 1202.4, subdivision (b)(1) restitution fine is imposed; a $ 200 Penal Code section 1202.45 parole restitution fine is imposed and stayed; an impaired driver fine in the sum of $ 390 plus $ 663 in penalty assessments is imposed. The judgment in case No. PA034717 is affirmed in all other respects.
The superior court clerk is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections. --------------- Notes: Unless otherwise indicated, all future statutory references are to the Penal Code.
GRIGNON, J.
I concur:
MOSK, J., Dissenting and Concurring.
I respectfully dissent from the part of the majority opinion that affirms the imposition of the one-year prior prison term enhancement under Penal Code section 667.5 (the prior prison term enhancement), but I concur in the remainder of the opinion. I believe that the trial court did not have jurisdiction to modify the sentence it had imposed and suspended more than a year earlier.
In People v. Howard (1997) 16 Cal.4th 1081, 946 P.2d 828 (Howard), the California Supreme Court held that a trial courts power is limited when the court has imposed a sentence but suspended its execution pending a term of probation: "On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect." (Id. at p. 1088.) In reaching this holding, the Supreme Court discussed with approval the Court of Appeals decision in People v. Colado (1995) 32 Cal.App.4th 260 (Colado), in which the Court of Appeal held that the trial court does not have jurisdiction to modify a sentence that has been imposed, even though execution has been suspended, once the time to appeal from the imposition of the sentence has run. (Colado, supra, at p. 263; see also People v. Chagolla (1984) 151 Cal. App. 3d 1045, 1049, 199 Cal. Rptr. 181.)
In the present case, no appeal was taken from the three year and eight month sentence imposed in September 2000. Therefore, under Howard and Colado, the sentence was final at the time of execution in January 2002. The majority hold, however, that the sentence imposed in September 2000 was unauthorized because the trial court failed to impose or strike the prior prison term enhancement and because the sentence violated the plea agreement. Although it is true that even a final judgment may be subject to correction when the judgment is void because the court had no jurisdiction to enter it (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 176, pp. 205— 206), I find that the record in this case shows that the trial court had jurisdiction to impose the sentence it imposed in September 2000.
Contrary to the majority opinion, I conclude that the trial court did not fail to impose or strike the prior prison term enhancement, because the trial court granted the Peoples motion to dismiss the "remaining allegations" following the courts pronouncement of the three year and eight month sentence. I disagree that the Peoples motion to dismiss the "remaining allegations" necessarily was limited to case No. PA034540. The trial court first imposed the sentence and discussed the terms of probation in case No. PA034717, and then turned to case No. PA034540. But after the court imposed the sentence and discussed the terms of probation in case No. PA034540, the court then discussed the terms of probation in both cases, and the motion to dismiss the "remaining allegations" was made after that discussion. Although the People claim to have made a mistake by moving to dismiss all of the "remaining allegations," and the trial court allegedly made a mistake by granting the Peoples motion in its entirety, that is what the People and the trial court did. Therefore, the sentence imposed in September 2000 was not unauthorized on the ground that the trial court failed to impose or strike the prior prison term enhancement. (Cf. People v. Bradley (1998) 64 Cal.App.4th 386, 391-392 [a sentence is legally unauthorized if the trial court failed to impose or strike an enhancement].)
Similarly, the sentence imposed in September 2000 was not unauthorized on the ground that it violated the plea agreement. Although a court does not have jurisdiction to unilaterally alter the terms of a plea agreement so that it becomes more favorable to the defendant, it may do so if the parties agree to the alteration. (People v. Superior Court (Gifford) (1997) 53 Cal.App.4th 1333, 1337.) As I have discussed above, the record shows that the prior prison term enhancement was dismissed on the Peoples motion, without objection by defendant. Therefore, the sentence imposed was not unauthorized because the trial court had jurisdiction to alter the plea agreement by dismissing the enhancement in accordance with the Peoples motion.
For the above reasons, the three year eight month sentence was final at the time of execution, and the trial court did not have jurisdiction to modify the sentence to add a one-year prior prison term enhancement. Therefore, the trial courts imposition of a one year prior prison term enhancement must be set aside. In all other respects, I concur in the majority opinion.