Opinion
D041244.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE HILL, Defendant and Appellant.
A jury convicted Kenneth Wayne Hill of inflicting corporal injury on his spouse. (Pen. Code, § 273.5, subd. (a.).) In a bifurcated hearing, the court found Hill had a strike prior (§§ 667, subds. (b)-(i), 1170.12), had served two prior prison terms (§ 667.5, subd. (b)), and had a prior conviction of inflicting corporal injury on a spouse or cohabitant (& sect; 273.5, subd. (e)). On December 6, 2000, the court denied a motion to dismiss the strike prior and a motion for a new trial, placed Hill on three years probation, and ordered him to serve 365 days in custody. On July 16, 2002, the court modified probation and ordered Hill to have no contact at all with the victim. On September 18, after an evidentiary hearing, the court revoked probation. It sentenced Hill to prison for four years: the two-year lower term for inflicting corporal injury on his spouse, enhanced by two 1-year terms for the prior prison terms.
All statutory references are to the Penal Code.
FACTS
As indicated, at the sentencing hearing on December 6, 2000, the trial court placed Hill on three years probation, and sentenced him to serve 365 days in custody. On June 17, 2000, Hill and his wife argued. He threw the telephone at her, hitting her in the head and causing a laceration requiring sutures. At an evidentiary hearing held on September 18, 2002, Hills wife testified that on April 12, 2002, she and Hill argued. He slapped her. On July 13, 2002, Hills wife awoke and he was standing over her. He had moved out the previous May. Hill took the telephone from the wall, and hit his wife in the shoulder with it. She ran.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the trial court found Hill guilty of a misdemeanor and therefore lacked jurisdiction to revoke probation; and (2) whether the evidence was sufficient to warrant revocation of probation.
We granted Hill permission to file a brief on his own behalf. He has not responded. We requested further briefing on whether the trial court lacked jurisdiction to revoke probation because it had sentenced Hill on December 6, 2000, to 365 days for inflicting corporal injury on his spouse and after imposing the sentence lacked power to also place him on probation. The parties have briefed this issue and we conclude the court placed Hill on felony probation and had jurisdiction to revoke probation in 2002.
We have carefully examined the record, particularly the reporters transcript of the December 6, 2002 sentencing hearing, and conclude that the trial court erroneously granted probation without dismissing the strike prior, but the People have waived objecting to the error. At the December 6 sentencing hearing, the court first said it was not setting aside the strike. Then, while discussing factors favoring probation, the court erroneously said Hill was presumptively ineligible for probation but since this was an unusual case, probation was appropriate. A defendant with a strike prior is not eligible for probation. (& sect; 667, subd. (c)(2).) However, the People did not object. In their supplemental brief, the People note that the order granting probation was unauthorized but do not object to the order.
Ordinarily, we would correct an unauthorized sentence, whether the People objected or not. In this unusual case, the current appeal is from a sentence following the revocation of probation. At the revocation hearing, the trial court said it had "implicitly struck" the strike prior during the original sentencing process. While it is clear a trial court cannot "implicitly" strike a prior conviction, since it must state reasons in the written minutes of the court for its decision (see § 1385), it appears the attorney general has waived any procedural objection to the "implicit" striking. We note the trial judge in this case has retired and neither side objected to a final sentence on the basis of the trial courts failure to comply with section 1385. Accordingly, we will review the sentence in this case as one which the trial court was authorized to impose.
After the court found probation appropriate, it warned Hill that if he continued to violate probation, he was going to prison for a long time. The court then said:
"[B]ased on all these circumstances, the mitigants are far in excess of any aggravating factors, and I will declare this an unusual case and grant probation.
"Ill do the following — Do we have a probation order?
"[PROBATION OFFICER]: We have an alternate.
"[THE COURT]: Please.
"The Penal Code section 273.5 is a wobbler.
"Im going to sentence you to 365 days custody to the sheriff, on three years formal probation, on the term and conditions as follows[.]"
The trial court then stated the credit for time served, imposed a fine and restitution fine, and after talking with the victim about a no-contact order, concluded, "since this is formal probation, you can have contact with Ms. Hill. That seems to be appropriate. Ill leave that to the discretion of the probation officer." The court went on to list other conditions of probation. Given this record, it is clear that the trial court intended to place Hill on probation but made a misstatement when it said it was sentencing him to 365 days rather than referring to the 365 days in custody as a condition of probation.
We recognize the original grant of probation was not only unauthorized but was confusing in the manner in which it was articulated. Even though the trial court made mention of the status of the offense as a "wobbler" (§ 17), the probation order and the concurrent statements of the trial judge indicated the court was granting felony probation even though it had failed to clearly strike the prior conviction. Accordingly, we reject Hills argument in supplemental briefing that the trial court had actually imposed a misdemeanor sentence with a 365-day maximum. The court could not have imposed a misdemeanor sentence of 365 days and also ordered a grant of probation. We believe the courts concurrent comments at the time of the grant of probation can only be reconciled with the intent, albeit in an unauthorized manner, to suspend imposition of judgment and grant felony probation subject to 365 days in custody, among other conditions.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Hill on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J. and McDONALD, J.