Opinion
D073173
08-09-2018
THE PEOPLE, Plaintiff and Respondent, v. NICKLAUS BUSH, Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE369794) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson and Peter L. Gallagher, Judges. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Meredith S. White and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
On June 7, 2017, Nicklaus Bush entered into a plea agreement involving two pending cases. In case no. SCE369794 he pleaded guilty to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). In case no. SCE369174 Bush pleaded guilty to one count of receiving stolen property (Pen. Code, § 496d). The prosecution agreed to dismiss the remaining charges and the parties agreed to a stipulated sentence. The agreed sentence was three years eight months, with the execution of sentence suspended and Bush would be granted probation and be allowed to participate in drug court. Bush was sentenced in accordance with the plea agreement.
All further statutory references are to the Penal Code unless otherwise specified.
Ultimately, Bush was terminated from drug court and his probation was revoked on September 26, 2017. On October 24, 2017, the trial court executed the suspended sentence of three years eight months in county jail, and denied Bush's request to order a split sentence at that time.
On November 20, 2017, Bush filed a notice of appeal and obtained a certificate of probable cause (§ 1237.5).
Bush contends the court erred in the October 2017 sentencing by denying his request to modify the previous sentence and impose a split sentence of custody and supervised release. He contends there is a statutory presumption such sentences will be split unless the court finds good cause to impose a straight custodial sentence. Although split sentencing was not mentioned in the plea agreement nor raised prior to the June 2017 sentencing, Bush argues such sentence was an "implied term" of the plea agreement.
The People respond that Bush's appeal is untimely. They argue the sentence imposed and then suspended in June 2017 was a judgment and the time for appeal should run from that date and not the October date. They also argue that Bush waived his right to appeal from the stipulated sentence as part of the plea agreement. Finally, the People contend the trial court did not have authority to modify the previously imposed, but suspended sentence under People v. Howard (1997) 16 Cal.4th 1081, 1088 (Howard) and cases which have followed.
Although the waiver of appeal box was checked in the change of plea form, it was never discussed by the court or counsel at the time of the change of plea. Thus, we will decline to dismiss the appeal on the ground of waiver. We do, however agree with the People that this current appeal, challenging the custodial sentence, is untimely as the suspended sentence imposed in June 2017 was a judgment and hence appealable. Bush does not challenge the revocation of his probation on this appeal and the sentence he does challenge was imposed when probation was granted. We will find the appeal of the October 2017 sentencing an untimely effort to challenge the sentence which was actually imposed in June 2017, although its execution was suspended. At the October 2017 sentencing the trial court lacked the power to modify the previously imposed sentence.
This appeal arises from a plea agreement and challenges only the sentence. The facts of the underlying offenses are not relevant to the issues we address. We will omit the traditional statement of facts.
DISCUSSION
The June 2017 Sentencing
The trial court imposed a three year eight month custodial sentence on Bush on June 7, 2017. The court suspended the execution of that sentence and granted Bush probation for three years and ordered him to drug court. Pursuant to section 1237, the order granting probation, after execution of the custodial sentence was suspended, was a final judgment for purposes of appeal. (People v. Amons (2005) 125 Cal.App.4th 855, 868-869; People v. Mazurette (2001) 24 Cal.4th 789, 792.) If Bush wished to challenge that sentence he should have filed a timely appeal from that order. (People v. Latham (1988) 206 Cal.App.3d 27, 30-31.)
When Bush failed to timely appeal from the probation order and the suspended sentence, the judgment became final and nonappealable. (Howard, supra, 16 Cal.4th at p. 1084; People v. Kelly (2013) 215 Cal.App.4th 297, 307.) Thus, to the extent Bush now seeks to challenge the suspended custodial sentence, his appeal is untimely.
Bush's appeal from the October 2017 sentencing is timely, however, the question we next discuss is whether the trial court had the power to modify the previously imposed sentence, the execution of the custodial portion of which had been suspended.
The October 2017 Sentencing
After his probation had been revoked, Bush requested the court to consider imposing a split sentence, where some portion of the custodial term would be replaced with mandatory supervision. (§ 1170, subds. (h)(2), (h)(5)(A).) The prosecutor opposed a split sentence based upon Bush's inability to comply with probation conditions.
The trial court declined to modify the custodial sentence. The court said: "Okay. I'm not going to do a split. If it was contemplated in the plea agreement, that would have been one thing, but it was not. It's silent. There's an ESS sentencing here." Thereafter, the court denied probation and ordered the execution of the previously imposed sentence without modification.
The record indicates the court and the parties used the term "ESS" to refer to "execution of sentence suspended."
Bush now contends the original plea agreement should be interpreted to include an implied agreement to impose a split sentence should probation be revoked. From such premise, Bush argues the trial court at the October 2017 sentencing should have modified the previous sentence to comply with the implied term. We reject that argument.
First, there is no mention of a split sentence in the plea agreement or at the original sentencing. Second, the court's comments regarding consequences of the proposed plea, did not mention a split sentence, but instead referred to the potential term as a prison sentence. More importantly, the trial court did not have the authority to modify the previous sentence.
In Howard, supra, 16 Cal.4th 1081 at page 1084 the court clarified the distinction in probation cases between those in which imposition of sentence is suspended and those in which the execution of sentence is suspended. The court said: "We conclude that if the trial court has previously suspended the imposition of sentence, it may ultimately 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 (see § 1170, subd. (d)), to reduce the imposed sentence once it revokes probation." (Howard, supra, at p. 1084.)
Our Supreme Court further discussed the effect of a sentence which is imposed, but the execution of it is suspended. In People v. Scott (2014) 58 Cal.4th 1415, 1423-1424, the court said:
" '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." ' [Citation.] However, '[u]nlike 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." ' "
In sum, the trial court imposed a custodial sentence without a period of mandatory supervision in June 2017. Bush never challenged that sentence which was never appealed. He cannot now argue that the trial court in October 2017 should have modified the sentence. The sentence was an authorized term which could not be later reduced when probation was revoked.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.