Opinion
C082047
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. TERESA LEE REISINGER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF15454)
Defendant Teresa Lee Reisinger pleaded no contest to felony fleeing or attempting to elude a pursuing peace officer (Veh. Code, § 2800.2, subd. (a); count 1) and misdemeanor driving under the influence of a drug (§ 23152, former subd. (e); count 2). The trial court placed defendant on formal probation for three years, with 180 days in jail.
Undesignated statutory references are to the Vehicle Code.
The sole issue on appeal is whether section 2800.2 mandates at least six months' county jail when imposing probation. According to defendant, the trial court mistakenly believed that it did not have discretion under section 2800.2 to order less than six months in jail as a condition of probation. Defendant contends the case should be remanded for a proper exercise of discretion. The People agree, and we will remand.
DISCUSSION
When granting probation, a court may impose as a condition of probation that defendant be imprisoned in a county jail "for a period not exceeding the maximum time fixed by law in the case." (Pen. Code, § 1203.1, subd. (a).) The maximum term is one year, unless the defendant has been convicted of multiple offenses and consecutive sentences have been imposed. (Pen. Code, § 19.2.)
Section 2800.2 is punishable "by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year," and a fine of between $1,000 and $10,000. (§ 2800.2, subd. (a).) Section 2800.2 is silent as to the period of confinement that may be imposed as a condition of probation, indicating it does not require incarceration as a condition of probation. (Compare, e.g., § 14601.2, subd. (e) [for a first time offender who is granted probation, "the court shall impose as a condition of probation that the person be confined in the county jail for at least 10 days"].) Accordingly, the trial court had discretion to impose a jail sentence of up to one year as a condition of probation.
As defendant and the People agree, the trial court indicated throughout the proceedings that it believed six months in county jail was mandatory under section 2800.2. In her plea form, defendant agreed that she "underst[oo]d that pursuant to . . . section 2800.2[, subdivision] (a), if probation is granted I must serve not less than six months in the County Jail." In addition, during the plea hearing, the trial court stated it "may require [defendant] to serve six months in the county jail." Also, during the sentencing hearing, the trial court responded to defense counsel's request for probation and time served as follows, "[t]he sentence is 180 days on the 2800.2." The prosecutor agreed, stating, "it's a statutory minimum of 180 days on this particular type of offense. She was advised of that at the time of the entry of her plea." The prosecutor further argued the trial court would have to find an exception to impose a lower jail term, and the statutory minimum was appropriate here because defendant put people at risk while fleeing the police. The trial court imposed 180 days for the section 2800.2 conviction, reasoning, "[d]efendant's going to be treated the same as anyone else who commits these crimes."
The trial court erred when it interpreted section 2800.2 as requiring a mandatory minimum of six months in jail as a condition of probation. We shall remand the matter for the proper exercise of discretion. (People v. Meloney (2003) 30 Cal.4th 1145, 1151.)
We decline defendant's invitation in her reply brief to advise the trial court on fees and fines that it has yet to consider on remand. (In re I.A. (2011) 201 Cal.App.4th 1484, 1489 ["It is a fundamental principle of appellate practice that an appeal will not be entertained unless it presents a justiciable issue."]; see also Pacific Legal Foundation v. Cal. Coastal Com. (1982) 33 Cal.3d 158, 170-171 ["The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions."].)
DISPOSITION
The judgment is reversed and the matter is remanded in accordance with this opinion. The trial court is directed to prepare a new probation order and forward a copy to the probation department.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Butz, J.