Filed 3/6/15 P. v. Keehl 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Glenn)
                                                            ----



THE PEOPLE,                                                                                  C072882

                   Plaintiff and Respondent,                                  (Super. Ct. Nos. 12SCR07799,
                                                                               12NCR09327, 12NCR09336)
         v.

CHRISTOPHER LEE KEEHL,

                   Defendant and Appellant.




         In these consolidated proceedings, defendant Christopher Lee Keehl entered
negotiated guilty pleas and was sentenced to prison.
         On appeal, defendant contends (1) in case No. 12NCR09327, the trial court erred
in imposing a one-year prior prison commitment enhancement (Pen. Code, § 667.5,
subd. (b)) based on an allegation that was neither admitted nor proved, and (2) in case
No. 12SCR07799, the one-year sentence imposed for possession of marijuana in jail
(Pen. Code, § 4573.8) is unauthorized and must be reduced to eight months. The People




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concede both claims of error. We agree with the parties and modify the judgment
accordingly.
                          PROCEDURAL BACKGROUND1
                      The Charges and Enhancement Allegations
       Case No. 12NCR09327
       In case No. 12NCR09327, defendant was charged with transporting hydrocodone
(Health & Saf. Code, § 11352, subd. (a) (count I)); possessing oxycodone (Health & Saf.
Code, § 11350, subd. (a) (count II)); unlawfully driving and taking a vehicle (Veh. Code,
§ 10851, subd. (a) (count III)); and misdemeanor receiving stolen property (Pen. Code,
§ 496, subd. (a) (count IV)). As to all three felony counts, it was also alleged defendant
had previously been convicted of a serious or violent felony (Pen. Code, § 1170.12,
subd. (a)-(d)) and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
       Case No. 12NCR09336
       In case No. 12NCR09336, defendant was charged with unlawfully driving and
taking a vehicle. It was also alleged that defendant had previously been convicted of a
serious or violent felony and that he had served a prior prison term.
       Case No. 12SCR07799
       In case No. 12SCR07799, defendant was charged with knowingly possessing
marijuana while in county jail (Pen. Code, § 4573.8). It was also alleged that defendant
had previously been convicted of a serious or violent felony and that he had served a
prior prison term.
                                The Pleas and Sentencing
       Defendant entered guilty pleas in all three cases pursuant to a negotiated
agreement in which he would receive a prison term of no greater than nine years.



1 Because this appeal raises only sentencing issues, we dispense with reciting the facts of
defendant’s crimes.

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       In case No. 12NCR09327, defendant pleaded guilty to possessing oxycodone and
unlawfully driving and taking a vehicle and admitted having previously been convicted of
a serious or violent felony; the remaining counts were dismissed.
       In case No. 12NCR09336, defendant pleaded guilty to unlawfully driving and
taking a vehicle.
       In case No. 12SCR07799, defendant pleaded guilty to possessing marijuana while
in county jail.
       Concerning the enhancements, the trial court clarified with counsel that defendant
was admitting the strike allegation in case No. 12NCR09327 only. Later in the
proceedings, the court orally dismissed all other enhancements in the three cases pursuant
to the negotiated agreement.
       At the sentencing hearing, the trial court imposed an aggregate prison sentence of
eight years eight months in these three cases. It selected the oxycodone possession
conviction in case No. 12NCR09327 as the principal term and imposed the upper term of
three years, doubled the sentence by virtue of defendant’s admission of a prior strike
conviction, and added a one-year enhancement under Penal Code section 667.5,
subdivision (b), for defendant’s having served a prior prison term. In case
No. 12NCR09336, the court imposed an eight-month sentence (one-third the middle term
of two years) for defendant’s conviction for driving and taking a vehicle, to be served
consecutive to the sentence in case No. 12NCR09327. In case No. 12SCR07799, the
court imposed a one-year sentence (one-third the purported middle term of three years)
for defendant’s conviction for possessing marijuana in county jail, to be served
consecutive to the sentence in case No. 12NCR09327.
                                      DISCUSSION
       On appeal, defendant challenges two components of his aggregate sentence.




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             I. Unauthorized Sentence on Prior Prison Term Enhancement
        At the sentencing hearing, defense counsel first told the trial court that defendant
had admitted the section 667.5, subdivision (b), prior prison term allegation in case
No. 12SCR07799, but then said that was not correct. The district attorney interrupted to
offer his opinion about the triad for the possession of marijuana in jail charge in case
No. 12SCR07799, and there was no other discussion about whether defendant had
admitted the prison prior enhancement in case No. 12NCR09336.2
        On appeal, defendant contends the court erred in imposing a one-year
enhancement in case No. 12NCR09336 for his having served a prior prison term pursuant
to Penal Code section 667.5, subdivision (b), because that enhancement allegation was
neither admitted nor proven. The People concede the sentence on the enhancement was
improperly imposed and must be stricken. We agree. As defendant neither admitted the
allegation nor did the People prove it at trial, the one-year enhancement is unauthorized
and must be stricken. (Cf. People v. Scott (1994) 9 Cal.4th 331, 354 [a sentence is
unauthorized where it could not be lawfully imposed].)
      II. Unauthorized Sentence on Possession of Marijuana While in County Jail
        During the sentencing on case No. 12SCR07799, the district attorney suggested
that the sentencing triad for possession of marijuana in county jail was “2, 3, 4.” The
defense disagreed, saying it was of the belief that the triad is “16, 2, 3.” The trial court
said, “I think it’s 2, 3 and 4, because it’s in the jail. I just wanted to make sure we’re all
on the same wavelength there, okay.” The trial court imposed one-third the midterm;
thinking the midterm was three years, the court imposed the one-year sentence.
        Defendant challenges the one-year term. Both parties agree this was also an
unauthorized sentence, and so do we.




2   The probation report indicated that the prison prior enhancement had been dismissed.

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       Penal Code section 4573.8 does not specify a punishment for possessing marijuana
while in jail; it states only that such knowing possession constitutes a felony. When a
penal statute does not specify a different punishment, the triad for imprisonment in state
prison for a felony is 16 months, 2 years, or 3 years. (Pen. Code, § 18, subd. (a).) The
trial court at sentencing mistakenly believed the mid-term for this offense to be three
years and consequently imposed the one-year term.
       An unauthorized sentence is reviewable “regardless of whether an objection or
argument was raised in the trial and/or reviewing court.” (People v. Welch (1993)
5 Cal.4th 228, 235.) Both the defendant and the People agree that we may correct this
error and resentence defendant without remanding the matter to the trial court. Because it
is clear the trial court intended in sentencing defendant in case No. 12SCR07799 to
impose one-third the middle term, to be served consecutively, and it does not appear that
on remand the trial court could restructure the aggregate sentence to achieve the total
aggregate sentence it apparently intended, we will modify the sentence to comport with
the correct statutory term. Thus, the sentence in case No. 12SCR07799 will be one-third
of the mid-term of two years, which is eight months.




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                                    DISPOSITION
      The judgment is modified to (1) remove the one-year enhancement imposed
pursuant to Penal Code section 667.5, subdivision (b), in case No. 12NCR09327, and (2)
reflect a consecutive state prison sentence of eight months in case No. 12SCR07799. As
modified, the judgment is affirmed. The superior court shall prepare an amended abstract
of judgment and forward a copy to the Department of Corrections and Rehabilitation.



                                                     MURRAY               , J.



We concur:



      MAURO                , Acting P. J.



      HOCH                 , J.




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