Filed 9/30/15




                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                 F068719
        Plaintiff and Respondent,
                                                      (Super. Ct. No. MCR033113C)
                  v.

DAVID MARTINEZ,                                                 OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
        Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys
General, for Plaintiff and Respondent.
       Penal Code section 1203.2, subdivision (c)1 provides, in pertinent part: “Upon
any revocation and termination of 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. However, 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.) Rule 4.435(b) states:
“On revocation and termination of probation under section 1203.2, when the sentencing
judge determines that the defendant will be committed to prison: [¶] (1) If the
imposition of sentence was previously suspended, the judge must impose judgment and
sentence after considering any findings previously made and hearing and determining the
matters enumerated in rule 4.433(c) [concerning, inter alia, the appropriate term].
[¶] … [¶] (2) If the execution of sentence was previously suspended, the judge must order
that the judgment previously pronounced be in full force and effect and that the defendant
be committed to the custody of the Secretary of the Department of Corrections and
Rehabilitation for the term prescribed in that judgment.” (Italics added.)
       David Martinez (defendant) was sentenced to state prison in two cases.2 In case
No. 2, the term was a subordinate term imposed pursuant to section 1170.1,
subdivision (a). Execution of defendant’s aggregate sentence on the two cases was
suspended and he was placed on probation. When defendant was subsequently found in
violation of probation in case No. 2, the trial court did not order the previously imposed




1      Further statutory references are to the Penal Code unless otherwise stated. All
references to rules are to the California Rules of Court.
2      For brevity and clarity, we have designated defendant’s two cases chronologically
as case No. 1 and case No. 2. (See Facts and Procedural History, post, at p. 3.) Only
case No. 2 is before us on appeal.


                                             2.
subordinate term into effect; it instead imposed a full three-year prison term. Defendant
challenges that order.3
       We hold the trial court must, upon revocation and termination of probation, order
the previously suspended sentence on the conviction into effect even when that sentence
was a subordinate term imposed consecutively to a principal term that no longer exists.4
Accordingly, we vacate the sentence and remand for resentencing.
                          FACTS AND PROCEDURAL HISTORY
       On April 15, 2008, defendant was convicted, in Madera County Superior Court
case No. MCR025640C (case No. 1) of possessing heroin in violation of Health and
Safety Code section 11350, subdivision (a). On June 18, 2008, he was admitted to three
years’ probation pursuant to section 1210.1, subdivision (a), subject to various terms and
conditions.
       On September 17, 2008, defendant was discovered injecting another man with
heroin. Defendant dropped a plastic bindle that contained three small bindles of heroin.
A complaint subsequently was filed in this case, Madera County Superior Court case
No. MCR033113C (case No. 2), charging defendant with possessing heroin (Health &
Saf. Code, § 11350, subd. (a); count 1) and being in a place where heroin was being used
(id., § 11365; count 2).
       On September 25, 2008, defendant pled guilty, in case No. 2, to count 1, and
count 2 was dismissed. That same day, he admitted his first drug-related violation of
probation in case No. 1. He was continued on probation in case No. 1 under existing

3     Another judge pronounced the original judgment. Judge Soldani presided over the
subsequent proceedings that gave rise to the present appeal.
4      People v. Sellner (Sept. 24, 2015, B261487) ___ Cal.App.4th ___, ___ [2015
Cal.App. Lexis 827, *4], which addresses resentencing under section 1170.18, states:
“When the principal term is no longer in existence, the subordinate term must be
recomputed.” As we explain, post, we find this unpersuasive with respect to situations
arising under section 1203.2, subdivision (c).


                                            3.
terms and conditions. On January 7, 2009, defendant was admitted in case No. 2 to three
years’ probation pursuant to section 1210.1, subdivision (a), subject to various terms and
conditions.
       On July 20, 2009, after defendant was twice found in violation of probation in
each case, judgment was pronounced. In case No. 1, for the violation of Health and
Safety Code section 11350, subdivision (a), the court imposed the aggravated term of
three years and deemed it the principal term. In case No. 2, for the violation of the same
statute, it imposed a consecutive eight-month prison term (one-third of the middle term of
two years) and deemed it the subordinate term. The court then suspended execution of
the aggregate sentence. With respect to case No. 1, it ordered probation revoked and
reinstated for a period of five years from June 18, 2008, subject to various terms and
conditions. With respect case No. 2, it ordered probation revoked and reinstated for a
period of five years from January 7, 2009, also subject to various terms and conditions.
       Following the pronouncement of judgment, defendant had periods of satisfactory
progress in drug treatment programs. These were interspersed with violations of
probation that resulted in probation being reinstated.
       On June 18, 2013, defendant’s probationary period in case No. 1 expired.
       On September 13, 2013, defendant’s probation in case No. 2 was summarily
revoked, based on allegations he violated the terms of his probation by failing to
(1) comply with the felony drug court components to the satisfaction of the probation
officer, and (2) enroll in and complete an inpatient substance abuse treatment program to
the satisfaction of the probation officer and the program director. On October 18, 2013,
following a contested revocation hearing, the court sustained the allegations, and referred
the matter to the probation department for preparation of a report and recommendation
for sentencing. In the report, the probation officer noted defendant originally was
sentenced to eight months in case No. 2, but, since the probation grant in case No. 1 had
expired, there no longer was a principal term to which the subordinate eight-month term

                                             4.
could be attached. Accordingly, the probation officer believed defendant was subject to a
full term of 16 months, two years, or three years in prison. The probation officer found
the aggravated term warranted in light of the absence of mitigating factors, but
recommended imposition of the middle term of two years, since one-third of the median
term was previously imposed and suspended.
       Defense counsel moved for imposition of the eight-month term. Counsel argued
the court had no authority to modify a sentence that was previously imposed with
execution thereof suspended, or to increase a sentence after its formal entry into the
minutes.
       Sentencing took place on January 3, 2014. Following argument, the court stated:

               “I think the Court’s obligated to follow the law. I think the law in
       this matter is clear that I can’t sentence him … to a one-third the median
       term when there’s only one case. I think I’m obligated to pick one of the
       three terms. And in this case, he was sentenced to three years and eight
       months. It’s just by luck of the draw that one case was deemed the
       aggravated term and the other … the subordinate term. And basically what
       the Court’s doing is just switching those, because the one deemed to be the
       aggravated term is no longer before the court. So that’s why I don’t believe
       the Court can sentence somebody in a case where only … one charge and
       one case to one-third the median term in this case.”
       The court then found defendant had an “extremely lengthy record” and “extremely
poor performance on probation,” with numerous violations thereof. It imposed the upper
three-year prison term.
                                      DISCUSSION
       An order imposing sentence, the execution of which is suspended and probation
granted, is an appealable order. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
When that order is not appealed, it becomes final. (Ibid.; People v. Colado (1995) 32
Cal.App.4th 260, 262; People v. Chagolla (1984) 151 Cal.App.3d 1045, 1049
(Chagolla).) “This is so regardless of the fact the defendant will not serve the sentence




                                             5.
unless the court revokes and terminates probation before the probationary period
expires.” (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.)
       A sentencing court has a duty to impose the punishment prescribed by law (§ 12),
and has no discretion to deviate from the statutorily specified penalty (People v. Lara
(1984) 155 Cal.App.3d 570, 574). Section 1170.1, subdivision (a) provides, in pertinent
part: “[W]hen any person is convicted of two or more felonies, whether in the same
proceeding or court or in different proceedings or courts, and whether by judgment
rendered by the same or by a different court, and a consecutive term of imprisonment is
imposed under Sections 669 and 1170, 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 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 ….”
       In 2008, when defendant committed the offense in case No. 2 and was convicted
in both cases, the sentence statutorily authorized for a violation of Health and Safety
Code section 11350, subdivision (a) was a prison term of 16 months, two years, or three
years. (Former Health & Saf. Code, § 11350, subd. (a); former § 18.)5 A three-year term
was imposed in case No. 1 and deemed the principal term, and an eight-month term was
imposed in case No. 2 and deemed the subordinate term and ordered to run consecutive to
the term imposed in case No. 1. This aggregate term was authorized and had become a
final judgment by the time defendant’s probation in case No. 2 was revoked.




5       There is some suggestion the offense in case No. 1 was actually committed in
2006. The specified punishment was the same at that time. (See People v. Johnson
(2015) 61 Cal.4th 674, 685 [sentencing courts generally are required to consider law in
effect at time offense was committed].)


                                             6.
       The trial court is without jurisdiction to modify or change a final judgment and is
required to order into execution that judgment after revocation of probation. (People v.
Colado, supra, 32 Cal.App.4th at p. 262; Chagolla, supra, 151 Cal.App.3d at p. 1049.)
       In Chagolla, the defendant pled guilty to attempted murder and admitted a great
bodily injury enhancement. He was sentenced to prison for seven years (four years for
the attempted murder plus three years for the enhancement), but execution of sentence
was suspended and he was placed on probation. Upon his subsequent violation of
probation, the trial court revoked probation, ordered the suspended sentence into
execution, and committed the defendant to prison for four years on the attempted murder
conviction, while staying the previously ordered three-year enhancement. On appeal, the
People contended the trial court acted in excess of its jurisdiction by reducing the
previously imposed seven-year sentence to four years. (Chagolla, supra, 151 Cal.App.3d
at pp. 1047-1048.) The appellate court agreed, stating: “The trial court was without
jurisdiction to modify or change the final judgment and is required to order into execution
that judgment after revocation of probation. The attempted modification of the
previously imposed sentence was beyond the trial court’s jurisdiction .…” (Id. at
p. 1049.) The appellate court observed that former rule 435(b)(2) “severely limit[ed]” the
power of the trial court in this situation, mandating that the judgment previously
pronounced be in full force and effect, and that the defendant be committed to prison for
the term prescribed in that judgment. (Chagolla, supra, at p. 1050.)
       In People v. Howard (1997) 16 Cal.4th 1081 (Howard), the defendant pled guilty,
in 1994, to one count of transportation of cocaine base. The trial court imposed a four-
year prison sentence, but suspended its execution and placed the defendant on probation.
Although the defendant appealed from the denial of her motion to withdraw her guilty
plea, she did not challenge the four-year term. Less than a year later, the trial court
revoked the defendant’s probation and ordered execution of that sentence. In the ensuing



                                              7.
appeal, the defendant contended the trial court improperly failed to exercise its discretion
to impose a mitigated three-year term. (Id. at pp. 1084-1085.)
       The California Supreme Court granted review to “resolve a conflict among Court
of Appeal decisions regarding a trial court’s authority, on revoking probation, to reduce a
probationer’s previously imposed but suspended sentence.” (Howard, supra, 16 Cal.4th
at p. 1084.) The high court concluded: “[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 [citation], to reduce the imposed sentence once it revokes
probation.”6 (Howard, supra, at p. 1084.)
       Relying in part on section 1203.2, subdivision (c) and former rule 435(b)(2) (now
rule 4.435(b)(2)), the court explained:

              “The proper disposition of this case rests upon the important
       distinction, in probation cases, between orders suspending imposition of
       sentence and orders suspending execution of previously imposed
       sentences.…

               “If the trial court in 1994 had originally suspended imposition of
       sentence before placing defendant on probation, the court unquestionably
       would have had full sentencing discretion on revoking probation. 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.] The probation order is considered to be a final
       judgment only for the ‘limited purpose of taking an appeal therefrom.’
       [Citation.] 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.’ [Citations.]



6      Chagolla was cited with approval in Howard, supra, 16 Cal.4th at page 1088.


                                             8.
               “Here, however, after defendant pleaded guilty …, the court actually
       sentenced her to a four-year prison term, but suspended execution of that
       sentence during the probationary period. 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 .…’ [Citations.] [¶] … [¶]

               “… [S]ection 1203.2, subdivision (c), and [former] rule 435(b)(2),
       by their terms, limit the court’s power in situations in which the court chose
       to impose sentence but suspended its execution pending a term of
       probation. 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.” (Howard, supra, 16
       Cal.4th at pp. 1087-1088, fn. omitted.)
       In response to the defendant’s argument use of the word “may” in section 1203.2,
subdivision (c) gave the trial court discretion to reduce her punishment, the Supreme
Court stated: “In our view, section 1203.2, subdivision (c), merely gives the court
discretion, on revocation and termination of probation, either (1) to revoke the suspension
of sentence and commit the probationer to prison for the term prescribed in the suspended
sentence, or (2) to decline to revoke the suspension or to order confinement. If the court
does order a prison commitment, however, both section 1203.2, subdivision (c), and
[former] rule 435(b)(2) consistently set forth the rule that the previously suspended
judgment shall ‘be in full force and effect.’ [¶] Therefore, we conclude that, if 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.” (Howard, supra, 16
Cal.4th at pp. 1094-1095.)
       The Attorney General does not contend Howard’s holding is limited to cases
involving the downward modification of an imposed but suspended sentence upon
revocation of probation. (See People v. Ramirez, supra, 159 Cal.App.4th at pp. 1417,
1424-1425 [holding Howard also precludes upward modification of such a sentence after


                                              9.
probationer’s rearrest on probation violation].) Rather, she argues that because the eight-
month term was an unlawful sentence at the time of execution, Howard’s limitations on a
court’s authority do not apply. She says interpreting Howard to mandate execution of
that sentence “would require the court to recognize as lawful a sentence that the
Legislature [by specifying the appropriate sentence for a violation of Health and Safety
Code section 11350, subdivision (a)] has clearly designated as unauthorized.”
       It is true, “‘[w]hen a court pronounces a sentence which is unauthorized by the
[applicable] Code, that sentence must be vacated and a proper sentence imposed
whenever the mistake is appropriately brought to the attention of the court.’ [Citation.]
‘When an illegal sentence is vacated, the court may substitute a proper sentence, even
though it is more severe than the sentence imposed originally’. [Citations.]” (People v.
Hunt (1982) 133 Cal.App.3d 543, 564; accord, People v. Serrato (1973) 9 Cal.3d 753,
764, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583,
fn. 1.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331,
354, italics added.) The problem with the Attorney General’s argument is that, as she
recognizes, the eight-month sentence was lawful when it was imposed.
       We agree that if only case No. 2 had been before the court when sentence was
imposed in 2009, an eight-month term would have been unauthorized and subject to
correction. We do not agree, however, that the Legislature intended such a sentence to be
deemed unauthorized under the narrow circumstances presented here. Rather, we view
subdivision (c) of section 1203.2 as evidencing a clear legislative intent to limit the trial
court’s authority in such circumstances to ordering the existing judgment into “full force
and effect.” The statute does not say the court may do so only if such judgment would
constitute an authorized sentence if imposed for the first time upon termination of
probation.



                                              10.
        The Attorney General cites us to In re Renfrow (2008) 164 Cal.App.4th 1251
(Renfrow). In that case, the defendant pled no contest to felony assault and admitted a
great bodily injury enhancement. The trial court suspended imposition of sentence and
placed the defendant on probation. When the defendant subsequently admitted violating
his probation, the court revoked probation, imposed the middle term of three years for the
assault conviction, suspended execution of that sentence, and reinstated the defendant on
formal probation. The court did not mention the enhancement. When the defendant later
admitted again violating probation, the prosecutor agreed to a five-year disposition,
consisting of the mitigated two-year term for the assault plus three years for the
enhancement. The court revoked probation, declined the defendant’s request to strike the
enhancement, and ordered execution of an aggregate term of five years. (Id. at pp. 1253-
1254.) The defendant subsequently claimed the five-year term was an unlawful increase
in the sentence that was previously imposed and suspended. Citing Howard, the superior
court agreed. The People appealed, claiming the trial court’s failure to impose or dismiss
the enhancement when it suspended execution of sentence constituted an unauthorized
sentence that later was properly corrected. (Renfrow, supra, at p. 1254.)
        The appellate court agreed with the People, observing that the failure to impose or
strike an enhancement constitutes a legally unauthorized sentence subject to correction,
even if the correction results in harsher punishment. (Renfrow, supra, 164 Cal.App.4th at
p. 1254.) The court found Howard not controlling, because it “— and the statute and rule
of court upon which it relied — governs a lawful sentence imposed and suspended
pending the completion of probation. It did not address an unauthorized sentence that
was imposed but suspended.” (Renfrow, supra, at p. 1256.)
        While we agree with Renfrow’s reading of Howard, the opinion is inapposite
because — unlike the situation that exists in defendant’s case — the sentence imposed
and suspended in Renfrow was unauthorized ab initio. Such clearly was not the situation
here.

                                            11.
       We have been unable to find any case presenting the precise factual scenario
before us. Several are instructive, however.
       In People v. Scott (2014) 58 Cal.4th 1415, the California Supreme Court held that
for purposes of the Legislature’s enactment of section 1170, subdivision (h), which
directs that certain felony offenders be incarcerated in the county jail rather than state
prison, and applies “prospectively to any person sentenced on or after October 1, 2011”
(id., subd. (h)(6)), “a defendant is ‘sentenced’ when a judgment imposing punishment is
pronounced even if execution of the sentence is then suspended. A defendant is not
sentenced again when the trial court lifts the suspension of the sentence and orders the
previously imposed sentence to be executed.” (People v. Scott, supra, at p. 1423; accord,
People v. Montrose (2013) 220 Cal.App.4th 1242, 1247.) The state high court observed:
“Admittedly we did not consider in Howard the court’s authority under the Realignment
Act to change the location of where a defendant is to serve a previously imposed term of
incarceration — at the time of Howard all felony sentences were to be served in state
prison. Nevertheless, Howard establishes that when a court elects to impose a sentence, a
judgment has been entered and the terms of the sentence have been set even though its
execution is suspended pending a term of probation.” (People v. Scott, supra, at p. 1424.)
       People v. Mora (2013) 214 Cal.App.4th 1477 also dealt with when a defendant is
“sentenced” for purposes of section 1170, subdivision (h). The appellate court stated:
“The imposition of the sentence is equated with entry of a final judgment. [Citations.]
Once a sentence is imposed, the trial court does not have jurisdiction to modify or change
the final judgment and is required to order that judgment into execution. [Citations.] [¶]
When the trial court revoked [the defendant’s] probation and executed her sentence on
May 17, 2012, it lacked jurisdiction to modify the sentence committing her to state prison
for two years. [Citations.] Because [the defendant] was sentenced to state prison before




                                             12.
October 1, 2011, her commitment to state prison upon revocation of probation does not
violate the Realignment Act.” (People v. Mora, supra, at p. 1482.)7
       From the foregoing cases, we conclude that when, as here, a lawful sentence is
imposed but execution thereof is suspended and the defendant is placed on probation, the
exact sentence must be ordered executed if probation is subsequently revoked. A trial
court is without jurisdication to do anything else, even if, during the probationary period,
circumstances change so that the sentence would be unauthorized if it were being
imposed in the first instance.8




7       The Attorney General argues the “prescribed statutory punishment[]” required the
trial court to impose a term of imprisonment in the county jail for 16 months, two, or
three years pursuant to section 1170, subdivision (h). Defendant, however, was
sentenced July 20, 2009. His probation was revoked and terminated after October 1,
2011. Section 1170, subdivision (h) was not applicable. (§ 1170, subd. (h)(6); People v.
Scott, supra, at pp. 1418-1419, 1423-1424.)
8      We recognize that because sentence was imposed in more than one case in 2009,
defendant was given an aggregate term of imprisonment. It has been held that an
“aggregate prison term cannot be viewed as a series of separate independent terms, but
rather must be viewed as one prison term made up of interdependent components [so that
t]he invalidity of some of those components necessarily infects the entire sentence.”
(People v. Savala (1983) 147 Cal.App.3d 63, 68-69, disapproved on another ground in
People v. Foley (1985) 170 Cal.App.3d 1039, 1044, 1046-1047; see People v. Hayes
(1992) 3 Cal.App.4th 1238, 1250, fn. 8 [when appellate court reverses conviction
underlying principal term, trial court retains jurisdiction over entire cause to modify
sentence by computing new principal term].) Here, however, neither component of
defendant’s sentence was invalid; rather, the principal term imposed in case No. 1 could
not be ordered executed because the probationary period in that case had expired by the
time probation was terminated in case No. 2.


                                            13.
                                     DISPOSITION
        The revocation and termination of probation are affirmed. Sentence is vacated,
and the matter is remanded to the trial court with directions to resentence defendant in
accord with this opinion.9

                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


    _____________________
    LEVY, Acting P.J.


    _____________________
    KANE, J.




9      It is possible that by the time remittitur issues in this case, defendant will have
been resentenced pursuant to section 1170.18. Should that be the case, the trial court will
be free to determine whether our remand for resentencing is moot.


                                            14.
