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Rezendes v. Superior Court of San Diego Cnty.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D061237 (Cal. Ct. App. Jan. 31, 2012)

Opinion

D061237

01-31-2012

CODY REZENDES, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. SCE313169)

PROCEEDINGS in mandate after probation and sentencing hearing. Peter C. Deddeh, Judge. Relief granted.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged Cody Rezendes with felony evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and three misdemeanors. On September 26, 2011, Rezendes entered a negotiated guilty plea to the felony. In exchange the People agreed to dismiss the balance of the charges and to not oppose local time "NOLT."

All statutory references are to the Vehicle Code unless otherwise specified.

The probation officer reported "the parties have agreed to a grant of probation" and recommended three years' summary probation for Rezendes with 20 days of public service. Counsel for Rezendes filed points and authorities, seeking a grant of probation for Rezendes, without any custody time.

At the hearing on January 3, 2012, the court stated it was required to impose a minimum of six months' confinement in the county jail under the language of section 2800.2, and there is no "escape clause, that allows [the court] to impose something less or to stay it." The court placed Rezendes on three years' summary felony probation, with 180 days in custody, which the court indicated Rezendes could serve in work furlough.

Rezendes filed this petition and requested a stay of the order, contending the court misunderstood its discretion to stay or suspend the 180 days in custody. We obtained an informal response from the People and issued a stay and Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) The People agree with Rezendes that there is no minimum custody requirement under section 2800.2, subdivision (a), as a condition of probation.

DISCUSSION

Section 2800.2, subdivision (a), provides:

"If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety or persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county
jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than then thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine."

Penal Code section 1203.1, subdivision (a) provides:

"The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case. . . ."

Although section 2800.2, subdivision (a), provides a period of confinement, it does not prohibit a grant of probation. Under Penal Code section 1203.1, subdivision (a), the court may grant probation and suspend the imposition of sentence, with or without a condition of a term of confinement.

Rezendes and the People agree the court has discretion to grant Rezendes probation and suspend imposition or execution of sentence without a minimum six-month period of confinement. Where the facts are undisputed and the law is well settled, a peremptory writ in the first instance is appropriate. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to vacate the January 3, 2012, order and to conduct a new probation and sentencing hearing, exercising its discretion and without the restriction of a mandatory minimum period of custody. The stay issued on January 26, 2012, is vacated. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)

___________

IRION, J.
WE CONCUR:

___________

HUFFMAN, Acting P. J.

___________

NARES, J.


Summaries of

Rezendes v. Superior Court of San Diego Cnty.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 31, 2012
D061237 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Rezendes v. Superior Court of San Diego Cnty.

Case Details

Full title:CODY REZENDES, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 31, 2012

Citations

D061237 (Cal. Ct. App. Jan. 31, 2012)