Opinion
Previously published at 51 Cal.App.4th 1440
Review Granted April 2, 1997.
Review Transferred to the Court of Appeal Feb. 3, 1998.
Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and B. Kathleen Blanchard, Deputy Attorney General, for Plaintiff and Respondent.
BOREN, Presiding Justice.
Lance Smith entered a negotiated plea of no contest to the sale or transportation of cocaine base (Health & Saf.Code, § 11352, subd. (a)) and was placed on probation for a period of three years. At the time probation was granted, the trial court imposed, and suspended, a five-year prison term. Probation was subsequently revoked and the five-year term was ordered into effect. Smith appeals, contending that the trial court had the authority to impose a lesser term upon revocation of probation and was not obligated to order into execution the previously suspended sentence as required by People v. Chagolla (1984) 151 Cal.App.3d 1045, 199 Cal.Rptr. 181. He argues that People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100 has impliedly overruled the Chagolla rule and that the trial court had the discretion to impose a lower sentence when it revoked his probation. We agree.
FACTS AND PROCEDURAL BACKGROUND
The record discloses that on March 2, 1993, appellant served as the go-between in the sale of rock cocaine to an undercover officer. He was charged with two counts of selling or transporting cocaine base resulting from this incident. He entered his no contest plea pursuant to a plea bargain in which the second count was dismissed, and he was sentenced to the upper term of five years, with execution of sentence suspended. He was placed on probation for a period of three years on specified terms and conditions. He did not appeal from the order granting probation.
The probation report indicated that appellant, who was 41 years old, had a record commencing in 1984 which included convictions of possession of a controlled substance, possession for sale of a controlled substance, grand theft, auto tampering, and second degree robbery.
Within six months the probation department reported that appellant had violated probation. A hearing was conducted, at which appellant's probation officer testified that appellant had never reported for probation supervision as ordered. Appellant testified that he was on medication, that his mind "goes and comes sometimes," and that he had no memory of the charges, the sentence, or the terms and conditions of his probationary grant. He acknowledged his failure to report and claimed he did not believe he was required to report. The court found appellant in violation of probation and ordered that probation be revoked.
Prior to commencement of the violation hearing, defense counsel informed the court that the prosecutor was willing to accept the low term of three years in exchange for appellant's admission that he had violated probation. The court stated, "Well, [counsel], the difficulty with that is that on August the 9th of 1993, the defendant was sentenced to five years in state prison. That was an DISCUSSION
California Rules of Court, rule 435(b) provides: "Upon revocation and termination of probation pursuant to section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison: ... (2) If the execution of sentence was previously suspended, the judge shall order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Director of Corrections for the term prescribed in that judgment."
In People v. Chagolla, supra, 151 Cal.App.3d 1045, 199 Cal.Rptr. 181, the court considered whether a trial court could reduce a previously imposed, but suspended, seven-year term when it revoked a defendant's probation. Relying on rule 435(b)(2), the court held that the trial court had no jurisdiction to modify the previously imposed sentence. The court stated: "The original sentence of seven years became a final judgment as neither Chagolla nor the People appealed therefrom. 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...." (151 Cal.App.3d at p. 1049, 199 Cal.Rptr. 181.) The court further stated, citing California Rules of Court, rule 435(b)(2), "The sentencing rules severely limit the power of the court in this situation.... This rule required the current trial judge to sentence Chagolla to the full seven-year term after revoking his probation." (Id. at pp. 1050-1051, 199 Cal.Rptr. 181.)
The court in Chagolla further observed, "We would also point out the original sentence resulted from a plea bargain and could not be unilaterally changed by the former or the current trial judge. (See People v. Godfrey (1978) 81 Cal.App.3d 896, 903, 147 Cal.Rptr. 9.) The present trial court was without jurisdiction to reevaluate reasons behind the original trial court's determination that a seven-year sentence was appropriate." (151 Cal.App.3d at p. 1051, 199 Cal.Rptr. 181.)
Appellant contends that under the more recent Supreme Court ruling in People v. Karaman, supra, 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100, a trial court retains jurisdiction to modify downward a previously imposed prison term. In Karaman, the Supreme Court considered "whether a trial court loses jurisdiction over a defendant, and the power to modify the defendant's sentence in a manner more favorable to the defendant, where the court has imposed a state prison sentence, has ordered a brief stay of execution of judgment in order to permit the defendant to put his or her personal affairs in order prior to commencement of execution of the sentence, and the clerk of the court has entered that sentence in the minutes of the court." (Id. at pp. 338-339, 14 Cal.Rptr.2d 801, 842 P.2d 100.) The court concluded that the trial court "retains jurisdiction to modify the defendant's sentence by imposing a lesser sentence at any time prior to commencement of execution of the sentence." (Id. at p. 339, 14 Cal.Rptr.2d 801, 842 P.2d 100.)
In People v. Colado (1995) 32 Cal.App.4th 260, 38 Cal.Rptr.2d 57, the court considered the precise issue presented here, and determined that Karaman did not change the rule set forth in Chagolla that a term once imposed Appellant's argument finds support in the recent case People v. Howard (1996) 50 Cal.App.4th 1617, 58 Cal.Rptr.2d 560. The court there examined the Chagolla rule in light of Karaman and, rejecting the reasoning of Colado, held that the trial court retains jurisdiction and has the discretion to modify downward a previously imposed, but suspended, prison term following revocation of probation. We conclude that Howard correctly determined that a previously imposed and suspended sentence may be modified downward.
In Karaman, the People argued that the trial court loses jurisdiction to modify a defendant's sentence when the clerk enters the sentence in the minutes; the defendant argued that the trial court retains jurisdiction to modify a sentence until the execution of the sentence commences. The Supreme Court rejected the "minute-entry" rule of finality except in cases where the original sentence consists of a fine only (4 Cal.4th at p. 351, fn. 17, 14 Cal.Rptr.2d 801, 842 P.2d 100) and held that the trial court retains jurisdiction to modify a sentence downward "at any time prior to commencement of execution of the sentence." (Id. at p. 339, 14 Cal.Rptr.2d 801, 842 P.2d 100.)
The court noted the common law rule that "a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced," observing that a trial court may, however, vacate and modify the sentence if the court " 'retains in itself the actual or constructive custody of the defendant and the execution of his sentence has not begun.' " (4 Cal.4th at p. 344, 14 Cal.Rptr.2d 801, 842 P.2d 100.) The court pointed out, citing People v. Banks (1959) 53 Cal.2d 370, 384, 1 Cal.Rptr. 669, 348 P.2d 102, "that upon entry of a guilty plea, if the trial court chooses to retain jurisdiction under the statutes dealing with probation, it may pronounce judgment and suspend its execution by refraining from issuing a commitment of the defendant to the prison authority. We stated: 'The critical requirement for control over the defendant and the res of the action is that the court shall not have surrendered its jurisdiction in the premises by committing and delivering the defendant to the prison authority.' [Citation.]" (Id. at p. 345, 14 Cal.Rptr.2d 801, 842 P.2d 100, original italics.)
In rejecting the "minute-entry" rule of finality precluding modification of a sentence at that early stage of proceedings, the court pointed out that under "the modern statutory sentencing scheme, ... the Legislature explicitly has granted trial courts jurisdiction to mitigate a state prison sentence even after execution of a sentence has commenced. Pursuant to [Penal Code] section 1170, subdivision (d), once a defendant has been committed to the Department of Corrections, the trial court has, within 120 days of the first day of commitment, the authority on its own motion to recall the sentence and resentence the defendant 'for any reason rationally related to lawful sentencing' [citations], 'provided the new sentence ... is no greater than the initial sentence.' (§ 1170, subd. (d).) This section creates a statutory exception to the common law rule that the trial court loses jurisdiction to resentence a defendant upon commencement of execution of his or her sentence. [Citations.]" (4 Cal.4th at pp. 351-352, 14 Cal.Rptr.2d 801, 842 P.2d 100, original italics, fns. omitted.) The court concluded "that where the sentence is to a term of imprisonment, the trial court retains jurisdiction, during the period a stay is in effect and at any time prior to execution of the sentence, to reconsider the sentence and vacate it or impose any new sentence which is not greater than the initial sentence, just as Although the court in Karaman did not have before it the circumstances presented here, we believe that its holding and reasoning apply to the situation where the execution of judgment has been suspended during a period of probation. As the court in Howard stated, Karaman indicates that appellant's failure to appeal from the original order granting probation did not divest the trial court of continuing jurisdiction over him in the matter of sentencing. (People v. Howard, supra, 50 Cal.App.4th at p. 1629, 58 Cal.Rptr.2d 560.) Although rule 435(b)(2), California Rules of Court, appears to require that the previously imposed term be ordered into effect, that rule is in conflict with Penal Code section 1170, subdivision (d) as construed by Karaman. Karaman declared that Penal Code section 1170, subdivision (d), permits a trial court to reconsider the sentence and modify it downward "during the period a stay is in effect and at any time prior to execution of the sentence" as well as within 120 days of the first day of commitment. Rule 435(b)(2) may also be in conflict with Penal Code section 1203.3, subdivision (a), which provides that the trial court has authority "at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence," including the authority to reduce a felony to a misdemeanor. (People v. Howard, supra, at p. 1631, 58 Cal.Rptr.2d 560.) To the extent a rule of court conflicts with a statute, the rule cannot stand. (People v. Hall (1994) 8 Cal.4th 950, 963, 35 Cal.Rptr.2d 432, 883 P.2d 974.)
We hold that Karaman compels the conclusion that the trial court here had the authority to reduce appellant's sentence when it revoked probation and ordered him to prison. We decline to follow People v. Chagolla, supra, 151 Cal.App.3d 1045, 199 Cal.Rptr. 181, or People v. Colado, supra, 32 Cal.App.4th 260, 38 Cal.Rptr.2d 57. Since the trial court was unaware of its sentencing discretion, we will remand the matter for resentencing (see People v. Fritz (1985) 40 Cal.3d 227, 229, 219 Cal.Rptr. 460, 707 P.2d 833), at which time the trial court may modify the sentence to a term lower than the five years previously imposed.
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing in accordance with the views expressed herein. In all other respects, the order under review is affirmed.
NOTT, and BRANDLIN, JJ., concur.
Assigned by the Chairperson of the Judicial Council.
We need not be concerned with this principle, since the parties apparently agreed that a three-year term was appropriate under the circumstances.