Filed 3/13/13 P. v. Crawford CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.



                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D060532, D060534

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. RIF1101501,
                                                                     RIF150644)
DARRYL PIERRE CRAWFORD,
                                                                     ORDER MODIFYING OPINION
         Defendant and Appellant.                                    AND DENYING REHEARING
                                                                     [NO CHANGE IN JUDGMENT]

THE COURT:

         It is ordered that the opinion filed herein on February 19, 2013, be modified as

follows:

         1.        On page 13, before the paragraph beginning "One consequence of our

conclusion," insert the following five new paragraphs:

                In a petition for rehearing, Crawford argues the sentence imposed in
         the 2010 case was a conditional sentence as a matter of law, citing Oster v.
         Municipal Court (1955) 45 Cal.2d 134 (Oster) and cases that have applied
         it. According to Crawford, it "is not proper for this Court to fail to address
         Oster, which is directly on point" and "requires the Court to find [sic] that
         the sentence that was pronounced in the 2010 case was a conditional
         sentence." We disagree.
       The simple answer to Crawford's contentions is that Oster, supra, 45
Cal.2d 134, and the cases applying it are not "directly on point." None of
those cases considered the issue here: whether a "wobbler" offense is a
felony or a misdemeanor when the court imposes a state prison sentence but
stays execution for one year to allow the defendant to undergo psychiatric
treatment. "[I]t is axiomatic that cases are not authority for propositions not
considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)

        Moreover, Crawford misrepresents Oster, supra, 45 Cal.2d 134, as
holding that the suspension of part of a sentence of imprisonment
constitutes a conditional sentence. The issue in Oster was whether a court
that expressly denied probation, but sentenced the defendant to 180 days in
county jail and then suspended 30 days of the sentence, nevertheless, by
imposition of the partially suspended sentence, granted probation.
According to Oster: "A court has no power to suspend a sentence except as
an incident to granting probation. [Citations.] Therefore, when a court
after pronouncing the judgment and sentence of imprisonment does order
all or part of the sentence to be suspended such order is considered to be an
'informal' grant of probation [citation] said to be 'the equivalent of a formal
order.' " (Id. at p. 139.) Based on these rules, the Supreme Court held "the
order made . . . after the pronouncement of sentence, suspending 30 days of
the sentence just previously imposed, must be construed as a grant of
probation to defendant." (Id. at p. 141.) The court did not hold the order
constituted a grant of "informal probation," i.e., a "conditional sentence"
(see People v. Glee, supra, 82 Cal.App.4th at p. 104 ["A grant of informal
or summary probation is a 'conditional sentence.' "]), a term of art that
appears nowhere in the Oster opinion. Rather, the court held probation had
been informally granted, and the only type of probation referenced in the
opinion is formal probation. (See Oster, at pp. 137, 139, 141, 142; see also
In re Herron (1933) 217 Cal. 400, 404 [order suspending execution of
sentence was equivalent to formal order granting probation under
supervision of probation officer].) Thus, Crawford is simply wrong when
he asserts, "The term 'informal probation' as it is used in Oster means and is
identical to 'conditional sentence.' "

       Crawford also complains that our opinion "ignores" People v.
Superior Court (Roam) (1999) 69 Cal.App.4th 1220 (Roam), which he
claims is "a modern case that explains and applies the concept [of
conditional sentence] in closely analogous circumstances." Again, we
disagree.



                                      2
              In Roam, the trial court suspended the imposition of sentence on a
      defendant who pleaded guilty to a serious felony and admitted he had four
      prior convictions that qualified as strikes under the "Three Strikes" law, and
      released the defendant on supervised own recognizance (OR) so that he
      could attend a drug rehabilitation program. (Roam, supra, 69 Cal.App.4th
      at pp. 1224, 1226.) Citing Oster, supra, 45 Cal.2d at page 139, the Court of
      Appeal stated that the "supervised OR order constituted an informal grant
      of probation," which was unauthorized because the defendant was ineligible
      for probation under the Three Strikes law. (Roam, at p. 1230.) Although
      the court also described the order as "in the nature of informal probation"
      and as "resembl[ing] informal probation" (id. at pp. 1229, 1230), we read
      the Roam opinion as using the phrase "informal probation" as shorthand for
      "informal grant of probation," not as a term of art meaning "conditional
      sentence." But even if Roam had held the supervised OR order there at
      issue constituted a grant of informal probation (i.e., a conditional sentence),
      which is proper only for misdemeanors or infractions, that holding would
      have no bearing on this case. Unlike in Roam, where the trial court
      suspended the imposition of sentence to allow the defendant to undergo
      drug rehabilitation, here the trial court imposed prison terms on Crawford's
      convictions in the 2010 case and suspended execution for one year to allow
      him to undergo psychiatric treatment. As we have explained, the
      "[i]mposition of a prison term, whether or not suspended, rendered [each]
      offense a felony." (People v. Wood, supra, 62 Cal.App.4th at p. 1267; see
      also People v. Banks, supra, 53 Cal.2d at p. 385 [when court imposes
      prison term but suspends execution and grants probation, "the defendant
      acquires the legal status of a person who has been both convicted of a
      felony and sentenced to such imprisonment"].)

There is no change in the judgment.

      The petition for rehearing is denied.



                                                                 MCINTYRE, Acting P. J.

Copies to: All parties




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