Filed 2/11/14 P. v. Gutierrez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057817

v.                                                                       (Super.Ct.No. SWF002769)

CHRISTOPHER MICHAEL                                                      OPINION
GUTIERREZ,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Affirmed as modified.

         Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Christopher Michael Gutierrez appeals following an

order revoking his probation and sentencing him to an aggregate term of 12 years in state

prison. On appeal, defendant contends (1) the trial court imposed an unauthorized

sentence in 2008, and (2) the abstract of judgment should be corrected to reflect that he

was convicted of assault by means of force likely to cause great bodily injury rather than

assault with a deadly weapon for count 3. We agree with the parties, and will modify the

judgment.

                                               I

                             PROCEDURAL BACKGROUND

       On January 9, 2004, in case No. SWF002769, an amended information was filed

charging defendant with inflicting corporal injury on a spouse or cohabitant (Pen. Code,

§ 273.5; count 1);1 false imprisonment (§ 236; count 2); assault by means of force likely

to cause great bodily injury (§ 245, subd. (a)(1); count 3); infliction of corporal

punishment or injury on a child resulting in a traumatic condition (§ 273d, subd. (a);

count 4); child abuse (§ 273a, subd. (a); count 5); and dissuading a witness by force or

threat of force (§ 136.1, subd. (c)(1); count 6). The amended information further alleged

that defendant had suffered two prior prison terms (§ 667.5, subd. (b)) and a prior serious

or violent felony strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

       On February 19, 2004, defendant pled guilty to counts 1 through 6 as charged; in

exchange for a suspended five-year term and dismissal of the remaining enhancement

       1   All future statutory references are to the Penal Code unless otherwise stated.


                                              2
allegations. The trial court thereafter immediately sentenced defendant to five years in

prison, but suspended execution of the sentence, and placed defendant on probation for a

period of five years. The five-year term consisted of the middle term of four years on

count 5, plus a consecutive one-year term on count 1, and concurrent terms on counts 2,

3, 4, and 6.

       Defendant subsequently violated the law by possessing controlled substances in

2006 and 2007, and criminal charges were filed in two separate cases. In case

No. RIF136312, defendant was charged with one count of possession of

methamphetamine for sale (Health & Saf. Code, § 11378) with a prior drug sale

conviction (Health & Saf. Code, § 11370.2, subd. (c)). The complaint further alleged that

defendant had suffered two prior serious or violent felony convictions (§§ 667, subds. (c)

& (e)(2)(A), 1170.12, subd. (c)(2)(a)). In case No. RIF136661, defendant was charged

with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and

possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The complaint further

alleged that defendant had suffered two prior serious or violent felony convictions

(§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). Defendant subsequently pled

guilty to the possession of methamphetamine charges in the two cases and admitted one

of the prior conviction allegations. In return, the remaining allegations were dismissed.

       On April 29, 2008, the trial court revoked defendant’s probation in this case

for violating the law. Defendant was thereafter sentenced in all three cases to an

aggregate term of 10 years as follows. In case No. RIF136312, to the upper term



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of three years, doubled to six years under the “Three Strikes” law, plus a consecutive

one-third of the middle term of four months, doubled to eight months under the Three

Strikes law in case No. RIF136661, plus a consecutive total term of three years four

months in case No. SWF002769. Defendant’s sentence in case No. SWF002769

consisted of one-third of the middle term or one year on count 1, 16 months on count 4,

and one year on count 6.

       On February 24, 2012, the California Department of Corrections and

Rehabilitation sent a letter notifying the court that defendant’s consecutive term on

count 6 in case No. SWF002769 had to be a full middle term of three years pursuant to

section 1170.15, and therefore defendant should have received three years for that

conviction rather than one year.

       On June 5, 2012, the trial court modified defendant’s sentence in case

No. SWF002769 and imposed a full middle term of three years on count 6, for a total

term of five years four months, and an aggregate term for all three cases of 12 years.

This appeal followed.

                                             II

                                      DISCUSSION

       A.     Sentence in Case No. SWF002769

       Defendant contends that the trial court lacked jurisdiction to modify his sentence

in case No. SWF002769 following revocation of his probation. He therefore claims that

his sentence in case No. SWF002769 should have been two years four months with a



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total aggregate sentence in all three cases of nine years. The People correctly concede the

error.

         When a prison sentence is imposed but execution of the sentence is suspended and

a defendant is placed on probation, the trial court must order the original sentence into

full force and effect if probation is revoked. (§ 1203.2; Cal. Rules of Court, rule

4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that

is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1089 (Howard).)

         In Howard, our Supreme Court explained, “[o]n revocation of probation, if the

court previously had imposed sentence, the sentencing judge must order that exact

sentence into effect.” (Howard, supra, 16 Cal.4th at p. 1088.) “[I]f the court has actually

imposed sentence, and the defendant has begun a probation term representing acceptance

of that sentence, then the court has no authority, on revoking probation, to impose a lesser

sentence at the precommitment stage.”2 (Id. at p. 1095.)

         The Howard court focused on the “important distinction, in probation cases,

between orders suspending imposition of sentence and orders suspending execution of

previously imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) When a court

suspends imposition of a sentence before placing a defendant on probation, the court has

full sentencing discretion upon revoking probation. (Ibid.) By contrast, when a court

imposes a sentence but suspends its execution pending a term of probation, on revocation

         2
         We note that a trial court exceeds its jurisdiction when it mitigates or aggravates
a previously imposed but suspended sentence at the time probation is revoked. (People v.
Ramirez (2008) 159 Cal.App.4th 1412, 1425-1427 (Ramirez).)


                                             5
and termination of probation the sentencing judge must order that exact sentence into

effect, subject to its possible recall under section 1170, subdivision (d), after the

defendant has been committed to state prison. (Howard, supra, 16 Cal.4th at p. 1088.)

This result is compelled by statutory language in section 1203.2, subdivision (c), which

provides in relevant part that upon 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.”3

       The court also has no authority to impose a greater sentence. This principle was

recognized in Ramirez, supra, 159 Cal.App.4th 1412. There, the trial court imposed a

four-year prison sentence but suspended its execution pending a period of probation.

After the defendant was rearrested for a probation violation, the court reinstated

probation but increased the suspended prison term to five years. Citing Howard, supra,

16 Cal.4th 1081, the appellate court concluded that the trial court lacked authority to

increase the four-year suspended sentence. (Ramirez, supra, 159 Cal.App.4th at

pp. 1424-1425.)




       3 The Howard court addressed the contention that inclusion of the word “may” in
section 1203.2, subdivision (c), affords the court discretion to reduce a previously
imposed sentence. (Howard, supra, 16 Cal.4th at p. 1094.) The court rejected the
argument, reasoning that the statute merely gives the trial court discretion to revoke or
reimpose the suspension of the previously imposed sentence. If suspension is revoked
and a prison commitment is ordered, however, the statute mandates that the previously
suspended judgment shall “‘be in full force and effect.’” (Ibid.)



                                               6
       Here, defendant’s original sentence was imposed pursuant to a negotiated

disposition in which defendant pled guilty in exchange for a suspended five-year term as

a condition of the plea. The trial court accepted the plea bargain and imposed sentence

pursuant to the plea agreement. Having done so, the trial court lacked jurisdiction to

subsequently alter the terms of the plea bargain. (Howard, supra, 16 Cal.4th at p. 1088,

1095; People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) Accordingly, we conclude

the trial court lacked jurisdiction to modify defendant’s sentence in case No. SWF002769

imposing a greater term upon terminating probation. The court was obliged to order into

execution the previously imposed but suspended term subject to computation as noted

below when it sentenced defendant following revocation and termination of probation.

       “[W]hen a defendant is sentenced consecutively for multiple convictions, whether

in the same proceeding or in different proceedings, the judgment or aggregate

determinate term is to be viewed as interlocking pieces consisting of a principal term and

one or more subordinate terms. (§ 1170.1, subd. (a).)” (People v. Begnaud (1991) 235

Cal.App.3d 1548, 1552.)

       “As a general rule, a sentence lawfully imposed may not be modified once a

defendant is committed and execution of his sentence has begun. [Citations.]”

“However, section 1170.1, subdivision (a) represents a statutory exception to the general

rule . . . .” (People v. Bozeman (1984) 152 Cal.App.3d 504, 507 (Bozeman).)

       Section 1170.1, subdivision (a), provides in pertinent part that when a person is

convicted of two or more felonies, “whether in the same proceeding or court or in



                                             7
different proceedings or courts,” and a consecutive term of imprisonment is imposed,

“the aggregate term of imprisonment for all these convictions shall be the sum of the

principal term, the subordinate term, and any additional term imposed for applicable

enhancements . . . . The principal term shall consist of the greatest term of imprisonment

imposed by the court for any of the crimes, including any term imposed for applicable

specific enhancements. The subordinate term for each consecutive offense shall consist

of one-third of the middle term of imprisonment prescribed for each other felony

conviction for which a consecutive term of imprisonment is imposed . . . .”

       California Rules of Court, rule 4.452, provides, in relevant part, as follows:

       “If a determinate sentence is imposed under section 1170.1(a) consecutive to one

or more determinate sentences imposed previously in the same court or in other courts,

the court in the current case must pronounce a single aggregate term, as defined in section

1170.1(a), stating the result of combining the previous and current sentences. In those

situations: [¶] . . . [¶] (3) Discretionary decisions of the judges in the previous cases

may not be changed by the judge in the current case. Such decisions include the decision

to impose one of the three authorized prison terms referred to in section 1170(b), making

counts in prior cases concurrent with or consecutive to each other, or the decision that

circumstances in mitigation or in the furtherance of justice justified striking the

punishment for an enhancement.” (Italics added.)

       In the instant matter, when the trial court sentenced defendant to an aggregate

term, it chose defendant’s conviction in case No. RIF136312 as the principal term, and



                                              8
properly treated defendant’s suspended sentence in case No. SWF002769 as the

subordinate term. However, instead of recalculating the initial suspended sentence to

reflect one-third the middle terms for counts 1 and 5, it imposed consecutive one-third

middle terms for counts 1, 4 and 6. The trial court therefore erred, even though the trial

court may not have been aware of how the suspended sentence was initially imposed.

Accordingly, we will modify defendant’s sentence in case No. SWF002769 to a total

term of two years four months (one-third the middle term of four years on count 5 and

one-third the middle term of three years on count 1) to run consecutively to the sentence

in case No. RIF136312. (See In re Harris (1993) 5 Cal.4th 813, 842 [Appellate court

may correct a sentence that is not authorized by law whenever the error comes to its

attention.].)

       B.       Correction of Abstract of Judgment

       Defendant also contends, and the People correctly concede, that the abstract of

judgment in case No. SWF002769 must be amended to reflect that defendant was

convicted of an assault by means of force likely to cause great bodily injury and not an

assault with a deadly weapon. We also agree.

       Defendant was charged with, and pled guilty to, assault with force likely to cause

great bodily injury. However, the abstracts of judgment from 2008 and 2012 incorrectly

note defendant’s conviction on count 3 in case No. SWF002769 as an assault with a

deadly weapon. The abstracts of judgment must therefore be corrected accordingly.




                                             9
                                            III

                                      DISPOSITION

       The judgment is modified to impose a total term of two years four months (one-

third the middle term of four years on count 5 and one-third the middle term of three

years on count 1) in case No. SWF002769 to run consecutively to the sentence in case

No. RIF136312, for a total aggregate prison term in all three cases of nine years.

       Additionally, the abstract of judgment is modified to reflect that defendant was

convicted of assault with force likely to cause great bodily injury on count 3 in case

No. SWF002769.

       The clerk of the superior court is directed to prepare an amended abstract of

judgment in accordance with this disposition and forward a certified copy of the

corrected abstract of judgment to the Department of Corrections and Rehabilitation. As

modified, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                RAMIREZ
                                                                                         P. J.
We concur:


HOLLENHORST
                          J.


McKINSTER
                          J.




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