Filed 9/8/23 P. v. Stites 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NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C097538
Plaintiff and Respondent, (Super. Ct. Nos. 21CF01647,
22CF02584)
v.
TRAVIS STEVEN STITES,
Defendant and Appellant.
Appointed counsel for defendant Travis Steven Stites filed an opening brief that
sets forth the facts of case Nos. 21CF01647 and 22CF02584 and asks this court to review
the record and determine whether there are any arguable issues on appeal. (People v
Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief disputing the facts
and circumstances under which he pleaded no contest in case No. 22CF02584, as well as
challenging the upper term sentence imposed. We directed the People to file a
supplemental brief addressing the latter issue; they filed a brief wherein they raised the
new claim that the trial court imposed an unauthorized sentence in case No. 22CF02584.
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We permitted defense counsel to reply. We now reject defendant’s claims but agree with
the People that the sentence was unauthorized. We will remand for full resentencing with
directions to correct the unauthorized sentence in case No. 22CF02584; this disposition
will allow the trial court to exercise its discretion to adjust the other components of the
aggregate sentence under the current sentencing laws, if it chooses to do so.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. 21CF01647
In March 2021, Anthony Rodriguez began following a black Honda CRV
belonging to him that had been stolen earlier in the month. The driver--later identified as
defendant--stopped and asked Rodriguez why he was following him. After Rodriguez
told defendant he was driving Rodriguez’s car, defendant drove off. Rodriguez followed,
losing sight of the vehicle but subsequently locating it parked at a Raley’s shopping
center. A witness told Rodriguez that the driver had walked toward the front entrance of
Raley’s. Law enforcement arrested defendant after he came out of the Raley’s.
Defendant was charged with receiving a stolen vehicle with a prior automobile
theft-related conviction (Pen. Code, §§ 496d, subd. (a), 666.5, subd. (a); count 1)1 and
possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2). It
was further alleged defendant had suffered prior serious or violent felony conviction.
(§§ 667, subd. (b)-(i), 1170.12.) Defendant pleaded no contest to receiving a stolen
vehicle and admitted the prior conviction. The remaining charges and allegations were
dismissed. The trial court suspended imposition of the sentence and granted defendant a
two-year term of formal probation on the condition that he enroll in a drug program.
1 Undesignated statutory references are to the Penal Code.
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Case No. 22CF02584
In May 2022, a police officer went to a U-Haul rental facility in Chico and spoke
to the staff about a U-Haul Chevrolet pickup truck used in recent crimes. The staff gave
the officer the name of the person who had rented the truck, which had not been returned
on the scheduled date. When contacted, the person who had originally rented the truck
told the officer that defendant had taken the truck and had represented that he would
return it to the rental facility for her. Later that evening, the officer located the rental
truck in a parking lot and identified defendant as the driver. The officer turned on his
patrol car lights, got out of his vehicle, and told defendant to shut off the engine and place
his hands outside the driver’s window. Defendant ignored the officer and quickly drove
out of the parking lot. It appeared to the officer that defendant had been attempting to
remove the U-Haul decals on the truck. Some days later, a police officer arrested
defendant after stopping him for a traffic violation and determining that he had an
outstanding felony warrant and was on probation.
Defendant was charged with receiving a stolen vehicle with a prior automobile
theft-related conviction (§§ 496d, subd. (a), 666.5; count 1), reckless driving in off-street
parking (Veh. Code, § 23103, subd. (b); count 2), resisting arrest (§ 148, subd. (a)(1);
count 3), and driving with a license suspended or revoked due to a conviction for driving
under the influence (Veh. Code, § 14601.2, subd. (a), count 4). It was further alleged that
defendant had previously been convicted of a serious or violent felony. (§§ 667, subd.
(d), 1170.12, subd. (b).) Based on the allegations of the criminal complaint, a petition
was filed alleging defendant violated his probation in case No. 21CF01647.
Defendant pleaded no contest to receiving a stolen vehicle and admitted the prior
conviction (from case No. 21CF01647). The remaining charges and allegations were
dismissed. Defendant filed a motion to withdraw the plea, which the trial court heard and
denied.
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Sentencing and Appeal
On October 20, 2022, the trial court sentenced defendant to four years eight
months in state prison, consisting of the upper term of four years for receiving a stolen
vehicle with a prior conviction in case No. 21CF01647 and eight months consecutive in
case No. 22CF02584, which the trial court described as one-third the middle term.
Defendant filed a timely notice of appeal, as well as a request for a certificate of
probable cause, which the trial court denied.
DISCUSSION
I
Defendant’s Contentions
Counsel’s Wende brief noted that defendant had been advised he could file a
supplemental brief to bring to the attention of this court any issues he believed deserved
review. Defendant filed a supplemental brief arguing that he only agreed to plead no
contest in case No. 22CF02584 because the public defender promised he would go to
drug court. He also claimed he was sentenced to county prison as the probation office
recommended but then “tricked” into returning for resentencing to state prison. He posits
he would have been acquitted had the case been tried, because the U-Haul was never
reported stolen and law enforcement caught another person with the truck. He adds that
private counsel who represented him had a conflict of interest because she had “a
criminal case of her own in the same court with the same judge as me . . . .” Lastly, he
asserts that, under the section 1170 limitation on sentencing, he should have received the
middle term.
As mentioned, the trial court denied defendant’s request for a certificate of
probable cause. California Rules of Court, rule 8.304(b)(3) provides, in relevant part,
that, in an appeal from a judgment on a plea of no contest, if “the superior court denies a
certificate of probable cause, the appeal will be limited to issues that do not require a
certificate of probable cause.” A certificate of probable cause is required to appeal from
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a judgment on a no contest plea on grounds that affect the validity of the plea. (Id.,
rule 8.304(b)(1).) A certificate is not required to appeal “[t]he sentence or other matters
occurring after the plea or admission that do not affect the validity of the plea or
admission.” (Id., rule 8.304(b)(2)(B).)
These rules preclude this court from reaching the issues defendant raises on
appeal, save for his claim that the sentence in case No. 22CF02585 did not comply with
section 1170. We now address that claim and agree that, in imposing an upper term
sentence in case No. 22CF02584, the trial court failed to sentence defendant in
conformity with section 1170.
Under section 1170, the trial court may impose the upper term only if the facts
underlying the aggravating circumstances that justify the upper term “have been
stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) The court nonetheless
“may consider the defendant’s prior convictions in determining sentencing based on a
certified record of conviction without submitting the prior convictions to a jury.”
(§ 1170, subd. (b)(3).)
In sentencing defendant, the trial court acknowledged section 1170 limited its
authority to impose a sentence exceeding the middle term. The court further noted that
defendant “did not stipulate to the existence of aggravating factors, nor did a jury find
aggravating factors to be true.” But the court also observed that “1170(b)(3) . . . allows
the Court to consider Defendant’s prior convictions and determine sentencing based upon
[a] certified record of conviction without submitting the prior conviction to a jury.”
Despite invoking section 1170, subdivision (b)(3), the record does not show that
the trial court admitted or considered a certified record of conviction. Rather, the record
indicates the court considered in aggravation defendant’s criminal history attached to a
probation report. A probation report is not a certified record of conviction. (People v.
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Dunn (2022) 81 Cal.App.5th 394, 403, review granted Oct. 12, 2022, S275655; see also
People v. Zabelle (2022) 80 Cal.App.5th 1098, 1114.)
The People concede the error but contend defendant forfeited the issue by failing
to object that the criminal history attached to the probation report was insufficient to
establish his prior convictions. We agree. However, because we are remanding for a full
resentencing given the imposition of an unauthorized term for another component of the
aggregate sentence, as we describe in more detail post, defendant will have a chance to
object to any term chosen by the trial court in advance of his resentencing. Thus, we
need not and do not discuss this issue further.
II
The People’s Contention
The People include in their supplemental brief the additional contention that the
trial court imposed an unauthorized sentence in case No. 22CF02584. In that case,
defendant pleaded no contest to receiving a stolen vehicle (§ 496d, subd. (a)) and
admitted a prior conviction for the same offense (§ 666.5, subd. (a)). The trial court
sentenced defendant to eight months consecutive custody time, to which the court
referred as one-third the middle term for the violation of section 496d, subdivision (a).
However, the sentencing triad for vehicle theft with a prior conviction is two, three, or
four years. (§ 666.5, subd. (a).)2 Indeed, the complaint in case No. 22CF02584 refers to
the sentence for vehicle theft with a prior conviction as “2-3-4 Yrs.” Further, in entering
his plea to case No. 22CF02584, defendant acknowledged that four years in state prison--
2 Section 666.5, subdivision (a) provides in relevant part that: “Every person who,
having been previously convicted of” the vehicle-related offenses enumerated in the
statute including “a felony violation of Section 496d regardless of whether or not the
person actually served a prior prison term for those offenses, is subsequently convicted of
any of those offenses shall be punished by imprisonment . . . for two, three, or four
years . . . .” (Italics added.)
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the correct upper term--was the maximum sentence he could receive due to his plea to
that charge.
We granted defendant’s request to file a supplemental reply brief addressing the
People’s new claim. Defendant argues the People overlooked that he bargained with the
district attorney to dismiss the “special allegations” in the complaint in case No.
22CF02584, which, according to defendant, consist solely of the section 666.5 prior
conviction allegation. He references item No. 7 of defendant’s plea agreement, which
sets forth the negotiated settlement with the district attorney, and includes, inter alia, the
handwritten words “strike special allegations.”
After examining the record, we disagree that the plea agreement contemplated the
striking of the prior vehicle theft allegation. Rather, as we next explain, defendant clearly
contemplated admitting the allegation as part of his plea, and he did so. Nor was there
any agreement to dismiss the prior vehicle theft allegation (to which he had already
pleaded) at sentencing.
Review of the complaint in case No. 22CF02584 discloses that there were two
allegations appended to the charge of vehicle theft: the prior vehicle theft allegation
(§ 666.5) and a strike allegation (§§ 667, subd. (b)-(i), 1170.12). At the plea hearing for
case No. 22CF02584, defense counsel described for the trial court the plea set forth in the
agreement defendant had signed: “[Defendant is] going to be entering a no contest plea
to Count 1, violation of Penal Code Section 496d, [subd.] (a). He’s admitting to a prior
conviction in Butte superior court [sic] case number 21CF01647. Upon entry and
acceptance, the remaining counts are going to be dismissed, as well as the strike of the
special allegations.” (Italics added.)
In the written plea agreement, item No. 7, defendant set forth the representations
made to him as the dismissal of all counts to which he had not pleaded, with a note
referencing “#3,” as well as the “strike special allegations” notation referenced above and
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a reference to drug court. Examination of item No. 3reveals his agreement to admit count
1, receiving stolen property, as well as the charged prior theft conviction allegation.
Thus, the record in its entirety makes clear that the handwritten entry “strike
special allegations” on the plea agreement, as well as defense counsel’s oral description
of the agreement set forth above, were referring to dismissal of the “strike” portion of the
“special allegations”; that is, dismissal the second strike allegation under the three strikes
law (§§ 667, subd. (b)-(i), 1170.12), at the time of sentencing. The trial court’s minute
order regarding defendant’s plea reflects the prior serious felony (second strike)
allegation stricken but not the section 666.5, subdivision (a) allegation.
Accordingly, defendant’s plea agreement did not involve striking the section
666.5, subdivision (a) allegation, and the only authorized consecutive term available to
the trial court at sentencing on the charge and accompanying allegation to which
defendant pleaded no contest was one third the midterm of three years--one year--in
custody, as opposed to the eight months actually imposed.
The People request that this court order correction of defendant’s sentence.3
Defendant counters that the prosecutor’s failure to object to the omission of section 666.5
in sentencing in case No. 22CF02584 forfeited the issue on appeal, citing People v. Scott
(1994) 9 Cal.4th 331.
We agree that, generally, “only those claims properly raised and preserved by the
parties are reviewable on appeal.” (People v. Scott, supra, 9 Cal.4th at p. 354.) The
forfeiture rule is typically applied to “claims involving the trial court’s failure to properly
3 Although the People cite cases holding trial court’s failure to strike or impose an
enhancement results in an unauthorized sentence that may be corrected on appeal (People
v. Bradley (1998) 64 Cal.App.4th 386, 391; People v. Vizcarra (2015) 236 Cal.App.4th
422, 432), we note that section 666.5 is not an enhancement but “an elevated sentencing
triad for recidivist car thieves who have a prior felony for car theft or related conduct.”
(People v. Lee (2017) 16 Cal.App.5th 861, 869-870; People v. Demara (1995) 41
Cal.App.4th 448, 452, 455.)
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make or articulate its discretionary sentencing choices.” (Id. at p. 353.) However, an
exception to the rule exists for “ ‘ “unauthorized sentences” or sentences entered “in
excess of jurisdiction.” ’ ” (People v. Smith (2001) 24 Cal.4th 849, 852.) Under this
exception, “obvious legal errors at sentencing that are correctable without referring to
factual findings in the record or remanding for further findings are not waivable.” (Ibid.)
Here, the trial court sentenced under the wrong statute, section 496d, subdivision
(a), which provides for a triad of 16 months, two years, or three years in custody, rather
than to the required triad set forth in section 666.5, subdivision (a), which provides that
the violator “shall be punished by imprisonment for two, three, or four years.” (Italics
added.) This error falls within the forfeiture exception for an unauthorized sentence or
sentence in excess of the trial court’s jurisdiction. (See People v. Superior Court (Duran)
(1978) 84 Cal.App.3d 480, 485-486 [trial court’s sentencing error in applying the wrong
statute was in excess of its jurisdiction and unauthorized].) The record is clear that the
trial court intended to impose a sentence of one-third the middle term prescribed by
statute in case No. 22CF02584, and a sentence of eight months in custody was simply not
available. The error must be corrected.
Because imposition of the only available consecutive term in case No. 22CF02584
increases defendant’s aggregate sentence from that selected by the trial court, and there
are other sentencing options available to that court if defendant is resentenced, we shall
remand for full resentencing with directions to correct the unauthorized sentence in case
No. 22CF02584. This disposition will allow the trial court to exercise its discretion to
adjust the other components of the aggregate sentence under the current sentencing laws,
if it chooses to do so.
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DISPOSITION
The sentence is vacated and the case is remanded for full resentencing with
directions to correct the unauthorized sentence in case No. 22CF02584. The judgment is
otherwise affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Horst, J.
Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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