Filed 8/6/14 P. v. Curiel CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----



THE PEOPLE,                                                                                  C074439

                   Plaintiff and Respondent,                                     (Super. Ct. No. NCR75375,
                                                                                         NCR86172)
         v.

PABLO LOPEZ CURIEL,

                   Defendant and Appellant.




         In November 2008 defendant Pablo Lopez Curiel pleaded no contest to conspiracy
to sell or transport marijuana (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code,
§ 11360, subd. (a)) in case No. NCR75375. Pursuant to the plea agreement, the trial
court imposed a three-year state prison term, suspended execution of sentence, and placed
defendant on five years’ formal probation.
         In April 2013 defendant entered into a negotiated disposition where he pleaded
guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378),
maintaining a place for the sale of methamphetamine (Health & Saf. Code, § 11366), and


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unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)) in case
No. NCR86172, and admitted violating his probation in case No. NCR75375. There
were two sentencing hearings: the trial court imposed a five-year term at the first hearing
and clarified what it meant at the second hearing, where it imposed a five-year term
again.
         On appeal, defendant contends the trial court erred in failing to pronounce orally
the sentence for each count in case No. NCR86172. In his reply brief, defendant
contends the trial court imposed an unauthorized sentence at the second sentencing
hearing. We shall vacate the sentence, remand for sentencing, and otherwise affirm the
judgment.
                                      BACKGROUND
         We omit the facts of defendant’s crimes as they are unnecessary to resolve this
appeal.
         The change of plea form in case No. NCR86172 states defendant may receive a
maximum sentence of three years for the possession of methamphetamine for sale count
and maximum eight-month terms for the maintaining a place for sale of
methamphetamine and possession of ammunition counts. The form does not indicate a
stipulated sentence as part of the plea.
         The trial court informed defendant at the plea colloquy that he was subject to a
maximum term of three years for the possession for sale count and would receive eight-
month terms for each of the other two counts. A stipulated term was not mentioned at the
hearing.
         The probation report in case No. NCR86172 states “[t]here was a plea agreement
of four years state prison or five years probation and up to three hundred sixty-five days
jail.”
         At the June 11, 2013, sentencing hearing, the prosecutor informed the trial court
that the statement in the probation report regarding a possible stipulated sentence was

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wrong, as defendant’s sentence was not part of the plea agreement. The prosecutor asked
for the maximum term of four years four months in state prison in case No. NCR86172
and a consecutive eight-month term in case No. NCR75375, for a total term of five years
in state prison.
       The trial court sentenced defendant to four years four months in state prison but
did not indicate which case number or numbers the sentence was for and did not specify
the sentence for each count. The court then imposed an eight-month term in case
No. NCR75375, to be served consecutively to the term in case No. NCR86172.
       The trial court held a new sentencing hearing on July 23, 2013, “for clarification
as to sentence.” The court stated it “intended to, if it did not, sentence the defendant to
four years in state prison on the count 1 charge of 182a1 of the Penal Code and one-third
the mid-term of two years on count -- I believe that’s count 2. Let me clarify. Yes,
count 2 is the 11360 (a) of the Health and Safety Code for an aggregate term of four
years, eight months. That was the Court’s intention.”
       After indicating this was a state prison rather than a county jail sentence, the trial
court concluded as follows: “The minutes reflect that in case NCR86172 the defendant
was sentenced to four years, four months in state prison. In NCR75375 the defendant
was to receive eight months in state prison consecutive with NCR86172. But he still --
he’s to receive four years on count 1 in this case, 75375.”
       The abstract of judgment for the second sentencing hearing shows a four-year
upper term for the possession for sale offense, a consecutive four-month term for the
maintaining a place for sale offense, and a consecutive eight-month term for the
conspiracy count, for a total term of five years in state prison.
                                       DISCUSSION
       In his opening brief, defendant contends that the sentence rendered at the June 11,
2013, hearing was unauthorized because the court did not specify the terms for each
offense in case No. NCR86172. The Attorney General claims this argument is forfeited

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because defendant did not raise the matter with the trial court. The Attorney General
further contends that any error was corrected by the trial court’s articulation of the
sentence at the July 23, 2013, hearing, and defendant forfeited any claim regarding the
July 23 hearing on appeal by not addressing that hearing in his opening brief.1 Finally,
the Attorney General claims there were errors in the abstract of judgment for the July 23
sentencing hearing. Defendant contends in his reply brief that the sentence pronounced at
the July 23 hearing was unauthorized.
       “The several sections of this code which declare certain crimes to be punishable as
therein mentioned, devolve a duty upon the court authorized to pass sentence, to
determine and impose the punishment prescribed.” (Pen. Code, § 12.) “When the
defendant pleads guilty, or is convicted, either by the court, or by a jury, the court shall
render judgment thereon of fine or imprisonment, or both, as the case may be.” (Pen.
Code, § 1445.) “After a conviction, following either a plea or verdict of guilty, the court
must pronounce judgment upon the defendant . . . , i.e., impose a fine or sentence of
imprisonment.” (People v. Blackman (1963) 223 Cal.App.2d 303, 307.) The appropriate
procedure when the trial court fails to sentence a defendant on a required count is to
remand and direct the trial court to impose sentence. (Hoffman v. Superior Court (1981)
122 Cal.App.3d 715, 724-725.)
       We need not determine whether the trial court rendered an unauthorized sentence
by failing to specify the sentence for each count at the June 11, 2013, hearing. The
July 23, 2013, hearing was a valid exercise of the trial court’s authority to recall and
modify a sentence within 120 days of the original sentence. (Pen. Code, § 1170,
subd. (d)(1); Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) Since



1 This argument was made without the benefit of seeing the reporter’s transcript of the
July 23, 2013, hearing, which was made part of the appellate record on the same day that
the Attorney General’s brief was filed.

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the notice of appeal had not yet been filed, the trial court also had the authority to correct
any unauthorized aspect of the sentence pronounced at the original sentencing hearing.
(People v. Hamed (2013) 221 Cal.App.4th 928, 941 [unauthorized sentence can be
corrected at any time]; People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473 [valid
notice of appeal divests trial court of jurisdiction over any matter affecting judgment].)
       Notwithstanding the Attorney General’s argument, we will address the contentions
in defendant’s reply brief regarding the sentence pronounced at the July 23, 2013,
hearing. Generally, points raised in the reply brief will not be considered out of fairness
to respondent, who would be deprived of the opportunity to respond to the argument.
(Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) One exception to this rule is for
claims regarding unauthorized sentences, an error “reviewable ‘regardless of whether an
objection or argument was raised in the trial and/or reviewing court.’ [Citation.]”
(People v. Smith (2001) 24 Cal.4th 849, 852.) This exception applies to the contentions
raised in defendant’s reply brief.
       The sentence pronounced at the July 23, 2013, hearing contains several errors that
render the sentence unauthorized. The sentence “four years in state prison on the count 1
charge of 182a1 of the Penal Code” refers to the conspiracy to sell or transport marijuana
count in case No. NCR75375.2 The four-year term is greater than the three-year term
originally imposed with suspended execution and is therefore unauthorized (see People v.
Howard (1997) 16 Cal.4th 1081, 1087-1088 [trial court cannot modify a sentence after
revocation of probation when the sentence was imposed but execution suspended prior to


2 Any doubt regarding the interpretation of the trial court’s initial statement is resolved
by its concluding remark: “The minutes reflect that in case NCR86172 the defendant was
sentenced to four years, four months in state prison. In NCR75375 the defendant was to
receive eight months in state prison consecutive with NCR86172. But he still -- he’s to
receive four years on count 1 in this case, 75375.” This leaves no doubt that the trial
court intended to impose a four-year term for conspiracy to transport or sell marijuana,
the only offense in case No. NCR75375.

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the grant of probation]) as well as a violation of the plea agreement in case
No. NCR75375. The trial court compounds this error by failing to impose a term for
possession of methamphetamine for sale or for unlawful possession of ammunition.
       We decline to try to ascertain what sentence the trial court actually wanted to
impose. This is particularly true where, as here, the offenses in case No. NCR86172
were not subject to a stipulated sentence. We shall therefore vacate the sentence in both
cases and remand for resentencing in accordance with this opinion. In light of the
disposition we need not address the Attorney General’s contentions regarding errors in
the abstract of judgment.
                                     DISPOSITION
       The judgments of conviction are affirmed. The sentence is vacated and remanded
for resentencing consistent with this opinion.



                                                            RAYE                , P. J.



We concur:



         BUTZ               , J.



         MAURO              , J.




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