Opinion
B235420
09-05-2012
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ANTONIO SARMIENTO, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA074447)
ORDER MODIFYING OPINION
AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on August 8, 2012, be modified as follows:
1. At the end of the third sentence in the second full paragraph on page 8, i.e., at the end of the sentence ending "prior conviction was an unauthorized sentence," add as footnote 8 the following footnote, which will require renumbering of all subsequent
8 Appellant, in his briefs on appeal, did not dispute his sentence was unauthorized. In his briefs on appeal, he argued his sentence for the substantive offense in count 2 should be reduced from a felony sentence (i.e., the three-year upper prison term imposed by the trial court; Pen. Code, § 18; former Pen. Code, § 666) to a misdemeanor sentence (i.e., a fine, imprisonment in the county jail not exceeding six months, or both; Pen. Code, § 490). In effect, he correctly argued
the felony sentence on that count was unauthorized, i.e., it could not lawfully be imposed on count 2 under any circumstance in this case if appellant had only a single prior conviction, given the fact former Penal Code section 666, subdivision (a) is retroactive. However, appellant, in the heading of his argument in his petition for rehearing, now asserts for the first time that, inter alia, his sentence was "lawful." We reject the assertion for the independent reasons it is unsupported by argument or citation to authority (cf. People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Callegri (1984) 154 Cal.App.3d 856, 865) and, for reasons previously discussed, it is erroneous on its merits. Indeed, if appellant's sentence were lawful, his appeal would be without merit for that reason alone.
2. On page 9, in footnote 8, add after the end of the original footnote a new paragraph that reads:
Appellant, in his petition for rehearing, argues the prosecutor "sat in complete silence during both the plea and sentencing proceedings" and "failed to file an appeal from the judgment"; therefore, the actions of this court in allegedly "object[ing]," "craft[ing] the prosecution's appeal," and "order[ing] a remedy the prosecution never even sought" are overreaching and implicate the separation of powers doctrine. However, first, the prosecutor had no occasion at the time of the June 21, 2010, plea and sentencing proceedings to raise any issue concerning former Penal Code section 666, subdivision (a), since, after all, it was added effective September 9, 2010. Second, because an unauthorized sentence may be corrected at any time, a reviewing court has inherent authority to correct that sentence whenever the error is called to the reviewing court's attention, and this is true whether or not the prosecutor objected below and whether or not the People appealed. (People v. Smith (2001) 24 Cal.4th 849, 852-854; In re Sandel (1966) 64 Cal.2d 412, 418; People v. Burnett (2004) 116 Cal.App.4th 257, 260-261; People v. Crooks (1997) 55 Cal.App.4th 797, 810-811, fn. 17; cf. People v. Serrato (1973) 9 Cal.3d 753, 763; contra, People v. James (1988) 170 Cal.App.3d
164, 167, fn. 1.) Finally, we reject appellant's separation of powers argument for the independent reasons it is unsupported by argument or citation to authority, and it is predicated on appellant's misapprehension of this court's inherent power to correct unauthorized sentences (cf. People v. Ayala (2000) 23 Cal.4th 225, 253, 275).
There is no change in the judgment.
Appellant's petition for rehearing is denied.