Filed 9/21/16 P. v. Hinkle CA1/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           FIRST APPELLATE DISTRICT

                                                        DIVISION ONE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                             A146205
v.
AMANDA LEATRICE HINKLE,                                                      (San Francisco County
                                                                             Super. Ct. No. 223838)
          Defendant and Appellant.


          Appellant Amanda Leatrice Hinkle was convicted of first degree residential
burglary and misdemeanor receiving stolen property. She argues, and respondent
concedes, that the trial court should have stayed the sentence she received on one of her
two convictions. We have identified additional potential errors with the sentencing order
and remand to the trial court to enter an authorized sentence.
                                                         I.
                                               FACTUAL AND PROCEDURAL
                                                    BACKGROUND
          On the morning of March 9, 2015, Hinkle entered an apartment on Golden Gate
Avenue in San Francisco, took several items, then left after one of the apartment’s
residents woke up. Police found Hinkle nearby shortly thereafter with several items that
had been taken from the apartment. A jury convicted her of felony first degree residential
burglary (Pen. Code, § 459—count 1)1 and misdemeanor receiving stolen property



1
    All statutory references are to the Penal Code.


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(§ 496, subd. (a)—count 2), and the trial court found true an allegation that another
person was present in the residence during the burglary (§ 667.5, subd. (c)(21)).
       Hinkle filed a motion for new trial in which she argued that she could not be
convicted both of first degree burglary and of receiving or buying stolen property because
the two crimes involved the same property. At the hearing on the motion, the prosecutor
acknowledged that the offenses merged for purposes of section 6542 but argued that such
a merger meant that while Hinkle could not be punished for both offenses arising out the
same course of conduct, she could be convicted of both of them. The trial court denied
the motion to dismiss, then turned to sentencing.
       After hearing arguments from the prosecutor and Hinkle’s attorney about
sentencing options, the trial court purported to sentence Hinkle by imposing a sentence
on one count and placing her on probation on the other count: “I’m going to start with
Count 2. [¶] The judgment and sentence of this Court to Count 2 of Ms. Hinkle’s
violation of Penal Code Section 496 Subsection (a) is one year in the county jail. [¶] As
to Count 1, a violation of Penal Code Section 459 in the first degree, as a felony, the
judgment and sentence will be as follows: [¶] Ms. Hinkle is sentenced to two years in
State Prison which is the mitigated term. However, the execution of that sentence will be
suspended. She will be placed on adult probation for a period of three years under the
following terms and conditions: [¶] She is sentenced to . . . 180 days in county jail.
[¶] . . . .[¶] And she gets custody credit of 180 days, for a total 360 days.” After warning
Hinkle that she would be sent to prison if she violated the terms and conditions of her
probation, the court also stated, “And before I forget, Counts 1 and 2 will be concurrent”
under “664” (most likely a reference to section 669, regarding concurrent and
consecutive sentences, as section 664 relates to punishment for attempted crimes, which
was not an issue here).

2
 Subdivision (a) of the statute provides that “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”


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       The minute order entered after the sentencing hearing likewise states that the
execution of sentence was suspended as to count 1, that probation was granted for a
period of three years, and that as a condition of probation Hinkle shall serve a term of 180
days in county jail, with credit for time served of 180 days. As to count 2, the minute
order states that Hinkle was sentenced to one year in county jail, with credit for time
served of 180 days. Finally, the order states that the sentences on counts 1 and 2 “are
concurrent.” A commitment order consistent with the minute order also was entered on
the date of sentencing.
       The clerk’s transcript contains minutes of a hearing held three days after the
sentencing hearing before a different judge than the sentencing judge, with attorneys
specially appearing for both attorneys of record. No reporter’s transcript of the hearing is
contained in the appellate record, but it appears that the cause was on calendar to check
whether Hinkle would be placed in drug court. The order states, “THE COURT
ORDERS: matter off calendar for the following reason: DEFENDANT WAS
SENTENCED ON 08-28-15 IN DEPT. M13.” The minute order also states, “Defendant
is sentenced to State Prison for a period of 2 Year(s), Low Term. [¶] Total State Prison
Term: 2Y 0M.” Thus, this order is internally inconsistent, insofar as it purports to
sentence Hinkle while also acknowledging that she already had been sentenced. And it is
inconsistent with the sentencing judge’s directive that execution of Hinkle’s prison
sentence be stayed and that Hinkle be placed on probation.
       After appellate briefing was completed, the court requested supplemental briefing
on whether it was permissible for the trial court to both place Hinkle on probation on one
count while also purporting to impose a sentence on a second count.




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                                              II.
                                         DISCUSSION
       In her opening brief, Hinkle argued that the trial court was required to stay her
sentence on count 2 under section 654’s bar against multiple punishments for the same
course of conduct. (People v. Allen (1999) 21 Cal.4th 846, 866-867 [defendant may be
convicted of both burglary and receipt of stolen property with respect to property stolen
during same burglary, though execution must be stayed for conviction on receipt of stolen
property under § 654].) She asked this court to remand the case for resentencing so that
the trial court could “impose and stay sentence for count two.” Respondent agreed that
the sentence on count 2 should be stayed in light of section 654, but asked this court to
modify the judgment without remanding the case.3
       We agree that the trial court erred under section 654 in sentencing Hinkle, and we
remand to the trial court to correct this error by staying the sentence on count 2. The trial
court also is directed to address several other potential errors. First, our record is unclear
whether Hinkle was ordered to immediately start serving her one-year jail sentence on
count 2—the misdemeanor conviction of possession of stolen property4—or whether the
execution of that term also was stayed as a result of the grant of probation. While the
court clearly stayed the execution of the two-year prison sentence on count 1, it made no

3
  Both parties agreed that this court should order that an abstract of judgment be prepared
and forwarded to the Department of Corrections and Rehabilitation. But “[a]bstracts of
judgment in matters imposing imprisonment in state prison are orders sending the
defendant to prison and imposing the duty upon the warden to carry out the judgment.”
(People v. Hong (1998) 64 Cal.App.4th 1071, 1076; see also § 1213, subd. (a) [abstract
of judgment prepared “if the judgment is for imprisonment in the state prison”].)
Because Hinkle was not ordered to prison, we decline to order that an abstract of
judgment be prepared stating that she was.
4
  Respondent contends that it was improper to order Hinkle to serve 365 days in county
jail on count 2, because the maximum term of confinement for a misdemeanor is 364
days (§ 19.2). Respondent asks that we modify the sentence to reflect 364 days. But so
far as we can tell, the trial court ordered that Hinkle serve “one year” in county jail,
which is defined by statute as 364 days. (§ 18.5 [where offense punishable by
imprisonment in county jail up to “one year,” sentence shall not exceed 364 days].)
There is thus no reason to modify the trial court’s sentence in this respect.


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reference to a stay of execution on count 2 and simply ordered that the “judgment and
sentence” on that count was one year in county jail. And the clerk’s transcript contains
an order titled “Commitment” that states that Hinkle “shall serve a term in County Jail of
1 year(s),” again with no reference to a stay of execution.
       The trial court was not authorized to grant Hinkle probation as to one count and
simultaneously impose the execution of a sentence as to another count. “Upon conviction
it is the duty of the court to pass sentence on the defendant and impose the punishment
prescribed. [Citations.] Pursuant to this duty the court must either sentence the
defendant or grant probation in a lawful manner; it has no other discretion.” (People v.
Cheffen (1969) 2 Cal.App.3d 638, 641, italics added.) Probation is “the suspension of the
imposition or execution of a sentence and the order of conditional and revocable release
in the community under the supervision of a probation officer.” (§ 1203, subd. (a).) In
granting probation, a trial court may of course impose a sentence and suspend its
execution, as the court did here with respect to count 1, Hinkle’s burglary conviction.
(§ 1203.1, subd. (a); People v. Rodriguez Alaniz (1993) 14 Cal.App.4th 1841, 1847.) But
doing so precludes a court from then simultaneously ordering the execution of a sentence,
as the court may have done here when it sentenced Hinkle to a year in jail on count 2.
       The confusion surrounding Hinkle’s sentence was compounded when the trial
court purported to order the sentences on the two counts to run concurrently under
section 669, subdivision (a). “Concurrent” means “occurring at the same time.”
(Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 239.) It is, of course, impossible
for Hinkle to serve a year-long term in county jail and “at the same time” serve a
sentence whose execution has been suspended and will never be served if her probation is
successful. (In re White (1969) 1 Cal.3d 207, 211 [serving sentence after revocation of
probation “could obviously not run concurrently with the sentence for [an] offense that
ha[s] already been served”].) And if her probation is unsuccessful, the sentence would
deprive Hinkle of the benefit of serving concurrent sentences under section 669 because
she would end up serving both sentences. (Ibid., citing § 1203.2a [where defendant is
sentenced to prison while on probation for another offense, defendant may request that


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sentence be imposed on offense for which defendant originally granted probation so that
there is the possibility of serving sentences concurrently].) We recognize that, as the
parties agreed in their appellate briefing, sentence on one of the counts in fact should
have been stayed under section 654. (People v. Allen, supra, 21 Cal.4th at pp. 866-867.)
We focus on section 669, which has no applicability here in light of the requirement to
stay one of the sentences, only to illustrate why the sentence the trial court purported to
impose was unauthorized.
       When we asked the parties to submit supplemental briefs on the issue, Hinkle
repeated her argument that the case should be remanded “with directions to apply
section 654.” Respondent argues that this court should simply “modify the judgment to
reflect the legally correct sentence,” meaning that “appellant’s concurrent one-year
sentence for receiving stolen property on count 2 should be . . . stayed pursuant to
section 654.” This argument apparently assumes that the execution of Hinkle’s jail
sentence on count 2 was stayed when the court granted Hinkle probation, as there would
be nothing to “stay” if Hinkle already has served this sentence since the trial court
imposed it more than a year ago.
       We elect to remand the matter to the trial court to resolve the foregoing sentencing
issues. If execution of both sentences was suspended, the trial court is ordered to stay
one of them under section 654. If Hinkle already has served her “sentence” on count 2,
the trial court shall correct its orders to reflect that Hinkle was granted probation. It may
be that the trial court intended to order Hinkle to spend time in jail as a condition of
probation. (§ 1203.1, subd. (a)(2) [court may impose imprisonment in county jail in
connection with granting probation].) If so, the court must amend its August 28, 2015
sentencing order to make this more clear. The trial court also is directed to revisit the
minute order entered on August 31, 2015, and make any necessary amendments thereto.
                                            III.
                                        DISPOSITION
       The matter is remanded to the trial court to enter an authorized sentence consistent
with this opinion.


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                                 _________________________
                                 Humes, P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




People v. Hinkle (A146205)




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