Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCE238783, Herbert J. Exarhos, Judge.
Appellant and respondent request we remand this case for resentencing. We agree the case should be remanded and appellant resentenced.
BENKE, J.
BACKGROUND
Appellant Jeanette Louise Lynch pled guilty in San Diego County Superior Court case No. SCE238783 to possession of cocaine, a controlled substance, in violation of Health and Safety Code Section 11350, subdivision (a), and a misdemeanor, agreeing to engage in an act of prostitution, in violation of Penal Code section 647, subdivision (b). On July 9, 2004, the trial court suspended imposition of the sentence and granted appellant three years of formal probation. On October 28, 2004, the trial court stayed execution of probation until completion of the drug court program. On April 7, 2005, appellant admitted violating probation when she did not report for drug treatment. Probation was restored on April 14, 2005.
On May 26, 2005, appellant pled guilty in superior court case No. SCE250375 to possession of cocaine, a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a). That same day she was granted three years of formal probation as part of the court's drug treatment program.
On May 11, 2006, the court found appellant violated her probation in case Nos. SCE238783 and SCE250375 for absconding. She was terminated from the drug treatment program, and on October 12, 2006, she was sentenced to three years in state prison in both cases. The court suspended execution of the sentence and she was certified to the civil addict program at the California Rehabilitation Center (CRC) pursuant to Welfare and Institutions Code section 3051.
Pursuant to appellant's request, on February 2, 2007, the trial court vacated appellant's civil commitment. On March 1, 2007, the trial court ordered execution of the previously stayed three-year prison term in case Nos. SCE238783 and SCE250375.
Timely notices of appeal were filed in each case.
DISCUSSION
The facts of the cases are not in dispute. Appellant's sole contention is that the trial judge erred in not specifying the sentences as to all the counts and allegations.
Appellant has withdrawn a second argument, that she received insufficient credit for time served in presentence custody. Apparently, the San Diego County Superior Court has acted favorably on her request.
Appellant states in support of her argument that when the court sentenced her to participate in the CRC civil addict program on October 12, 2006, and also imposed three years in the Department of Corrections, it failed to follow Penal Code section 1170, subdivision (a)(3), which required the court pronounce that it was imposing sentence for the two separate cases before the court, and further, that the court failed to dispose of two prior prison term convictions. Appellant states that at her resentencing on March 1, 2007, the court incorrectly stated that she had been previously sentenced to two prior prison terms, which were to be served concurrently. Appellant urges these errors created an unauthorized sentence which should be remanded for resentencing. (People v. Williams (1998) 17 Cal.4th 148, 164-165.)
The People agree this court should order a remand for sentencing. Respondent notes the sentencing process in case Nos. SCE238783 and SCE250375 is not a model of clarity. It notes that while execution of sentences in these cases was presumably suspended in order to allow appellant to participate in the Drug Court Program, no court ever actually imposed a sentence in either case. Because of this, on March 1, 2007, there were no previously stayed or suspended sentences for the court to order executed.
As is also noted by both respondent and appellant, the trial court failed to fully dispose of the prior prison term allegations in case No. SCE250375. There, as part of the plea bargain, appellant agreed to admit two of three prior prison terms in exchange for dismissal of the remaining charges. As the record indicates, while the court did take appellant's plea on the substantive crime, it failed to obtain an admission as to the two prior prison terms. In her reply brief, appellant agrees we should order the trial court to properly take her admissions to the prior convictions and then either strike or impose sentence on the prior convictions.
DISPOSITION
The case is remanded. The trial court is instructed to conduct a new sentencing hearing at which time it shall impose sentences in case Nos. SCE250375 and SCE238783, and, further, properly obtain appellant's admission of the two prior prison terms in case No. SCE250375.
WE CONCUR: McCONNELL, P. J., McDONALD, J.