Opinion
C083759
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS MARISCAL CORONA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. S15CRF0156)
Defendant Jesus Mariscal Corona appeals from the judgment imposed following his plea of no contest to spousal abuse, with a prior spousal abuse conviction, and first degree residential burglary. The trial court suspended imposition of sentence and granted defendant probation. After his first violation of probation, the trial court imposed a seven-year sentence, suspended execution, and reinstated defendant on probation. After his second violation of probation, the trial court imposed and executed a seven-year four-month sentence.
Defendant contends this seven-year four-month sentence was unauthorized under People v. Howard (1997) 16 Cal.4th 1081 (Howard), as a seven-year sentence had been previously imposed; therefore, the trial court was required to order that exact sentence executed. The People contend this case is an exception to Howard, governed instead by In re Renfrow (2008) 164 Cal.App.4th 1251 (Renfrow), because the seven-year sentence was an unauthorized sentence, subject to correction at any time. We agree with the People. However, because the prior prison term enhancement allegation was not properly disposed of, we will remand the matter to the trial court to address that allegation.
BACKGROUND
A complaint deemed an information charged defendant with spousal abuse with a prior spousal abuse conviction within seven years (Pen. Code, § 273.5, subd. (f)(1) - count 1), first degree residential burglary (§ 459 - count 2), second degree robbery (§ 211 - count 3), and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377 - count 4). The information further alleged defendant had served a prior prison term (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code.
Defendant pleaded no contest to spousal abuse with a prior conviction and first degree residential burglary. There was no discussion of the prior prison term allegation in the plea colloquy or the plea documents. Pursuant to the plea agreement, the trial court granted defendant probation, and suspended imposition of sentence. During the discussion of allocation of credits on defendant's numerous cases, the parties and the court agreed defendant would not receive any custody credits on this case, "so if he violates probation, he'd have the full seven-year-four-month commitment that could be served in actual prison."
The parties stipulated the factual basis was contained in the police report, neither the report or a summary of the report are contained in the record on appeal.
Defendant admitted he had a prior conviction for spousal abuse.
In August 2016, defendant admitted violating probation. Defense counsel advised the trial court the parties had reached an agreement wherein defendant would admit the violation of probation and "would be sentenced to seven years state prison, suspended." The trial court reinstated defendant on probation, imposed a seven-year term, "[t]hat is the high term," and suspended execution of sentence. In imposing the sentence the trial court did not specify how the term of seven years was calculated. However, upon an inquiry from the clerk, defense counsel indicated, "Count II would be the principal term. Count I would be one-third to midterm consec[utive]." Again, there was no mention of the prior prison term enhancement.
In November 2016, defendant admitted a second probation violation. The sentencing report indicated the crimes and their objectives were predominantly independent of each other. The sentencing report also noted that in August, defendant had been sentenced to an "upper term of seven (7) years pending successful completion of probation," but nonetheless the report recommended defendant be sentenced to a term of seven years four months. This term was calculated as: the upper term of six years on count 2 and a term of one year four months, one-third the midterm, on count 1, to run consecutively to count 2. Defendant did not object to the report or seek to correct it. The trial court found the objectives of the crimes were predominantly independent of each other, and followed the sentencing report's recommendation, sentencing defendant to the upper term of six years on count two, and one-third the midterm, one year four months, on count 1, for a total term of seven years four months. There was no mention of the prior prison term enhancement in either the sentencing report or at the sentencing hearing. There was no objection to the sentence or effort to change it to seven years.
In taking the admission, the trial court advised defendant "[y]ou understand the maximum possible confinement is 7 years and 4 months. . . ." Defendant stated he understood.
DISCUSSION
Defendant relies on Howard, supra, 16 Cal.4th 1081 to argue that because the November 2016 prison sentence imposed and executed at the final probation revocation was not the same as the August 2016 sentence imposed, execution suspended, at the prior probation revocation, the sentence must be reversed. The People argue this case falls under the Renfrow, supra, 164 Cal.App.4th 1251 exception to Howard, because the seven-year sentence was an unauthorized sentence, subject to being set aside at any time and permitting the imposition of a more severe sentence subsequently. Defendant contends the sentence was not unauthorized, as at the August sentencing hearing the trial court could have found that under section 654 the burglary and domestic violence counts were a single course of conduct, imposed the six-year upper term for the burglary, stayed the domestic violence term or run it concurrently, and then imposed the one-year prior prison term conviction enhancement, resulting in a seven-year term. He further contends on an "otherwise silent record," we must presume this is what the trial court did.
In general, when as here, a trial court has imposed a term of incarceration but stayed execution pending a term of probation, on revocation of probation without subsequent reinstatement, the sentencing judge may only lift the stay on the previously-imposed term of incarceration. (Howard, supra, 16 Cal.4th at pp. 1088, 1095.) "However, . . . if the sentence was an unauthorized sentence, the trial court can order execution of the correct sentence whether it is more or less than the sentence previously imposed." (Renfrow, supra, 164 Cal.App.4th at p. 1253.) An unauthorized sentence is " 'subject to judicial correction when it ultimately [comes] to the attention of the trial court or [reviewing] court' [citations]." (Id. at p. 1256.)
Defendant's claim that the trial court could have lawfully sentenced him to a term of seven years is premised on his claim that he properly admitted the prior prison term enhancement allegation. He did not. A prior prison term enhancement must be alleged in the accusatory pleading and either admitted by the defendant in open court or found true by the trier of fact. (§ 1170.1, subd. (e).) No evidence was presented on the prior prison term and defendant made no admission regarding it. There was no mention of the prior prison term enhancement allegation in the plea colloquy or the plea documents. The record reflects defendant did not admit the prior prison term enhancement.
Defendant claims his admission to count 1, which included the allegation that he had sustained a prior 2014 spousal abuse conviction, served as an admission to the enhancement allegation under section 667.5, that he had served a prior separate prison term. It did not. In admitting the prior 2014 spousal abuse conviction attached to count 1, defendant admitted he had sustained a previous spousal abuse conviction within the previous seven years. (§ 273.5, subd. (f)(1).) This admission acted as a sentencing enhancement, and increased his potential sentence. But, imposition of the enhancement allegation under section 667.5 "requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563; § 667.5.) Defendant's admission that he had a 2014 spousal abuse conviction did not admit either that he was imprisoned or that he completed that term of imprisonment. Thus, contrary to People v. Cross (2015) 61 Cal.4th 164, in which the allegation at issue was the section 273.5, subdivision (f)(1) enhancement, here defendant's admission did not admit every element of the enhancement allegation. The section 667.5 allegation required the People to establish defendant had served and completed a prior separate prison term; there is no such requirement in section 273.5, subdivision (f)(1). (§ 667.5, subd. (e); see also People v. Bruno (1987) 191 Cal.App.3d 1102, 1105.) Accordingly, defendant's admission of the prior spousal abuse conviction enhancement allegation of section 273.5, subdivision (f)(1) was not the equivalent of an admission of the section 667.5 prior prison term enhancement allegation. Because defendant did not admit the section 667.5 prior prison term enhancement, there was no lawful way to impose a seven-year sentence and the sentence imposed in August 2016 was unauthorized.
A conviction under section 273.5, subdivision (a), subjects a defendant to a term in "state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment." A conviction under section 273.5, subdivision (f)(1) subjects a defendant to "imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)."
In addition to the fact that defendant did not properly admit the prior prison term enhancement, other parts of the record further support the conclusion that the sentence was not calculated as defendant speculates. This is not an "otherwise silent record." Upon taking the plea, the trial court and the parties agreed defendant would be subject to a full seven-year four-month sentence if he violated probation. Upon defendant being sentenced in August, defense counsel and the trial court stated defendant was being sentenced to the high term on count 2 as the principal term, six years, and one-third the midterm on count 1, one year four months, to run consecutively. It is clear from the record the sentences for counts 1 and 2 were to run consecutively and that no sentence was imposed on the prior prison term enhancement. --------
Here, the sentencing report noted the error in the seven-year sentence and recommended the trial court impose a seven-year four-month sentence. The trial court followed that recommendation and corrected the sentence to a lawful term, and based on defense counsel's statement, one which was consistent with the parties' agreement. The trial court properly articulated the basis for imposing an upper term sentence and a consecutive sentence. There was no error in imposing this term.
We note, however, that there is an error which the trial court must remedy. Defendant did not admit the prior prison term enhancement. Nor does the record reflect it was dismissed. It appears, as the People suggest, the parties likely intended to dismiss the enhancement allegation as part of the plea, and neglected to do so. We will remand this matter to the trial court for further proceedings to dispose of the prior prison term enhancement allegation.
DISPOSITION
The matter is remanded to the trial court for further proceedings to dispose of the prior prison term enhancement and enter a modified judgment in accordance with this opinion.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Duarte, J.