Filed 10/7/20 P. v. Palacio CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301834
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos.
v. BA452318, BA462599, &
BA466464)
RENE BRYANT PALACIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David C. Brougham, Judge. Affirmed as
modified.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Stephanie C. Brenan, Supervising
Deputy Attorney General, and Toni R. Johns Estaville, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
Appellant Rene Bryant Palacio and the prosecution agree
one of Palacio’s three sentences is incorrect. They correctly say
this sentence must correspond with the original sentence the
superior court imposed before revoking Palacio’s probation. We
agree and modify the judgment. Statutory references are to the
Penal Code.
I
Four separate cases brought Palacio before the trial courts.
In 2017, Palacio pleaded no contest to receiving stolen
property in violation of section 496, subdivision (a). The case
number was BA452318.
In 2018, Palacio pleaded no contest to vandalism in
violation of section 594, subdivision (a). This case was BA462599.
Also in 2018, Palacio pleaded guilty to second degree
commercial burglary in violation of section 459. This case was
BA466464.
In the first two cases, the superior court suspended
imposition of sentencing. In the third case, the court sentenced
Palacio to the low term of 16 months in county jail but suspended
execution of the sentence. The court put Palacio on probation in
all three cases.
In 2019, the People brought a fourth case against Palacio—
case No. KA120344—again for burglary. The court held the
preliminary hearing for this case together with the probation
violation hearing for Palacio’s other cases.
The court found Palacio in violation of his probation and
terminated his probation in all three cases.
The court sentenced Palacio to the upper term of three
years in each of his three probation cases.
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In each of the three cases, the court selected the upper term
of three years as the base term. There were no enhancements.
The court did not use the words “base term,” as there were no
enhancements and the sentences were to be served concurrently.
The court then dismissed the fourth case against Palacio on
the prosecution’s motion.
Palacio appealed, arguing one of his three-year sentences is
unlawful. The one sentence he attacks is the sentence in
BA466464.
The People filed a response agreeing resentencing is
warranted as to the one case of BA466464.
II
The parties are correct. The court erred in imposing a
three-year sentence in Palacio’s third case, BA466464.
When a court grants probation without imposing a sentence
and later revokes the probation, the court may select any
available sentencing option. (People v. Howard (1997) 16 Cal.4th
1081, 1084, 1987 (Howard).)
These sentencing options are gone, however, when a court
imposes a sentence, suspends its execution, and grants the
defendant probation. (See Howard, supra, 16 Cal.4th at p. 1084.)
If the court later revokes probation, it must order that exact
sentence into effect. (Id. at p. 1088; see also Cal. Rules of Court,
rule 4.435(b)(2) [where execution of sentence was suspended and
the sentencing judge later determines the defendant will be
jailed, “the judge must order that the judgment previously
pronounced be in full force and effect . . .”].) Trial courts may not
modify a previously imposed and suspended sentence because
judgment has been entered and the terms of the sentence already
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have been set. (People v. Scott (2014) 58 Cal.4th 1415, 1422,
1424.)
In BA466464, the original sentencing judge set Palacio’s
sentence at 16 months and suspended execution of this sentence
in 2018. After revoking Palacio’s probation in 2019, the new
sentencing judge should have executed this 16-month sentence.
Thus, Palacio’s proper sentence is 16 months on BA466464,
three years on BA452318, and three years on BA462599. These
three terms run concurrently.
III
Palacio also asks that we order the abstract of judgment
corrected to reflect that he is serving a three-year high term in
case No. BA462599, not the midterm. We do so. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185 [important to correct errors in
abstracts of judgments].)
DISPOSITION
The judgment is modified. We direct the sentencing court
to (1) amend the sentencing minute order in BA466464 and the
abstract of judgment to reflect a 16-month sentence (the low
term) in this case; (2) correct the abstract of judgment to reflect
imposition of the upper (“U”) term in BA462599; and (3) forward
a certified copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J. GRIMES, J.
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