Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC137461
Kline, P.J.
Thurmaine Walls appeals from orders revoking probation and sentencing him to state prison. He contends that the trial court erred in aggravating his sentence based on his prior convictions and also enhancing his sentence pursuant to Penal Code section 667.5, subdivision (b), and that his attorney rendered ineffective assistance of counsel in failing to object to the sentence on this ground. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on April 14, 2005 with felony unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)); felony receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)); misdemeanor giving false information to a peace officer (Pen. Code, § 148.9, subd. (a)); and misdemeanor possession of a smoking device (Health & Saf. Code, § 11364). It was alleged as to the first two counts that appellant had been convicted of three prior felonies within the meaning of Penal Code section 1203, subdivision (e)(4), and had served prison terms within the meaning of Penal Code section 667.5, subdivision (b), for two of these convictions.
The alleged priors were a July 1989 conviction for possession of cocaine base for sale (Health and Saf. Code, § 11351.5); a November 1994 conviction for possession of firearm by felon (Pen. Code, § 12021, subd. (a)); and a December 2002 conviction for unlawful possession of a controlled substance (Health and Saf. Code, § 11350).
The alleged prison terms were associated with the convictions for possession of cocaine base and possession of a firearm by a felon.
On June 28, 2007, appellant entered guilty pleas to the charged counts and admitted the alleged priors with the understanding that he faced a prison term of five years eight months, and that the court would suspend execution of sentence and grant probation if the probation report was consistent with the facts already known to the court. Appellant waived his right to have a jury evaluate the factors in aggravation and mitigation of his sentence.
On August 15, 2007, appellant was sentenced to a total prison term of five years, consisting of the aggravated term of three years on count 1; an aggravated three-year term on count 2, stayed pursuant to Penal Code section 654; and one-year prison term enhancements in connection with each of counts 1 and 2. Appellant agreed to have the aggravated term imposed in return for “one last chance at probation.” The court suspended execution of sentence and placed appellant on probation for five years.
On October 24, 2007, the court revoked probation due to appellant’s failure to contact his probation officer as required and ordered a bench warrant issued. A petition for revocation of probation was filed on June 25, 2008, and on June 26, appellant denied the allegations of the petition and a hearing was set for July 30. On July 29, appellant waived his right to a hearing and admitted the allegations of the petition. The court revoked probation.
At the sentencing hearing on September 10, 2008, the court denied a defense request to strike the two enhancements and sentenced appellant to the previously described five-year prison term.
Appellant filed a timely notice of appeal on September 16, 2008.
STATEMENT OF FACTS
The facts underlying appellant’s convictions are summarized in the probation report as follows:
“On 1/5/04, at approximately 10:28 p.m., officers observed Thurmaine Walls seated in the driver’s seat of a Mazda. Angela Parks was observed leaning against the driver’s door outside of the vehicle. A third person, Smith, was standing next to the car. Officer’s ran the license number and discovered that the car was stolen. Smith and Parks were associated with the car. Officers took all three into custody. A narcotics pipe was found in the center console ashtray. Walls originally identified himself as Bernard Daniels, but it was later discovered that he was Walls and that he had an outstanding warrant for his arrest. Walls was booked for 10851 VC, 11364 H&S, 148.9 PC, and for the warrant. Smith was also booked for an outstanding warrant. Parks was released per 849(b) PC.”
DISCUSSION
Appellant contends that the trial court violated the proscription against dual use of facts by using his prior convictions as the basis for both imposing an aggravated term and imposing sentence enhancements. Penal Code section 1170, subdivision (b), provides that “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” California Rules of Court, rule 4.420(c), provides: “To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so.”
Subsequent statutory references will be to the Penal Code unless otherwise specified.
In imposing sentence, the trial court stated that it found the aggravated term appropriate because appellant had engaged in violent conduct indicating a serious danger to society, his prior record had numerous and serious offenses, he had served a prior prison term, he was on probation or parole when the instant offense was committed, and his prior performance on probation or parole was unsatisfactory. Appellant argues that the trial court improperly used his prior convictions both to aggravate his sentence and as the basis of sentence enhancements in that the court’s reasons for imposing the upper term were “in the main based on the prior convictions which were the basis for the prior prison term enhancements.” He relies upon People v. McFearson (2008) 168 Cal.App.4th 388, 395, which held that because a section 667.5, subdivision (b) enhancement is based on the fact of a prior conviction, not a prior prison term (cf. People v. Prather (1990) 50 Cal.3d 428, 439-440), the trial court could not use a prior conviction to impose an aggravated sentence and also use the prison term served for that conviction to enhance the sentence under section 667.5, subdivision (b).
Respondent correctly asserts that the trial court had no authority to modify the sentence imposed in August 2007. At that time, the trial court imposed a prison sentence within the terms of appellant’s plea bargain, then suspended execution of the prison sentence and granted appellant probation. Appellant did not object to the sentence imposed or appeal, and the order granting probation became final. (People v. Amons (2005) 125 Cal.App.4th 855, 869.)
“[I]f the trial court has suspended imposition of sentence, it ultimately may select any available sentencing option. However, if, as here, the court actually imposes sentence but suspends its execution, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitment stage (see § 1170, subd. (d)), to reduce the imposed sentence once it revokes probation.” (People v. Howard (1997) 16 Cal.4th 1081, 1084, 1095 (Howard).)
Howard explained: “When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. [Citations.]... On the defendant’s rearrest and revocation of her probation, ‘... the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced.’ (§ 1203.2, subd. (c); see also Cal. Rules of Court, rule 435(b)(1) [now rule 4.435(b)(1)] [‘If the imposition of sentence was previously suspended, the judge shall impose judgment and sentence’ in accordance with circumstances existing at time probation was granted and other proper sentencing considerations]....) [¶]... Unlike the situation in which sentencing itself has been deferred, where a sentence has actually been imposed but its execution suspended, ‘The revocation of the suspension of execution of the judgment brings the former judgment into full force and effect....’ (Stephens v. Toomey [(1959)] 51 Cal.2d [864,] 874; see also People v. Banks [(1959)] 53 Cal.2d [370,] 384-385; but compare § 1170, subd. (d) [once defendant has been sentenced and committed to Department of Corrections custody, court may within 120 days of commitment recall sentence and resentence defendant to a new term no greater than that imposed by initial sentence].)
“Reflecting these principles, section 1203.2, subdivision (c), recites that following the defendant’s rearrest, and on revocation and termination of probation, ‘if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect.’ (Italics added; see also rule 435(b)(2) [now rule 4.435(b)(2)] [‘If the execution of sentence was previously suspended, the judge shall order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Director of Corrections for the term prescribed in that judgment.’].) [¶]... On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations], subject to its possible recall under section 1170, subdivision (d), after defendant has been committed to custody.” (People v. Howard, supra, 16 Cal.4th at pp. 1087-1088.)
The rule stated in Howard has been applied even if the sentence imposed exceeded the trial court’s jurisdiction, so long as it was not outside the scope of the trial court’s fundamental jurisdiction. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1426-1428.) Appellant makes no claim that the court imposed an unauthorized sentence. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256 [imposition and suspension of execution of unauthorized sentence subject to correction upon revocation of probation].) Accordingly, even if the sentence imposed in August 2007 was erroneous under People v. McFearson, supra, 168 Cal.App.4th 388, as appellant claims, the trial court had no authority to alter it upon revocation of probation, and appellant’s attorney did not render ineffective assistance of counsel for failing to argue the dual use issue at sentencing on the probation revocation.
Due to these determinations, we find it unnecessary to address respondent’s alternative argument that any error would be harmless because the trial court stated reasons for aggravating the sentence in addition to appellant’s prior convictions, including that appellant was on probation or parole when he committed the current offenses, that his prior performance on probation and parole were not satisfactory, and that he had prior convictions in addition to the ones upon which the section 667.5 enhancements were based.
The judgment is affirmed.
We concur: Haerle, J., Richman, J.