Error and/or relief
On revoking probation, the court added an additional restitution fine to the original restitution fine and modified an eight-month consecutive term to an eight-month concurrent term in the same case, and then a 16-month concurrent term in a second case. On notice from the Department of Corrections and Rehabilitation that the 8-month concurrent term was unauthorized because the the one-third of the middle term clculation applies only to consecutive terms. The trial court then converted the eight-month concurrent term to 16 months concurrent. The second restitution fine was unauthorized and must be stricken. The court had no authority to change the original eight-month consecutive term to either a concurrent eight-month term or a sixteen-month concurrent term, because at the time probation was granted, the court imposed a sentence (two years on the principal count and eight months on the subordinate offense) in that case, with execution suspended pending successful completion of probation. The matter is remanded for resentencing.
First Holding:
A restitution fine imposed at the time probation is granted survives the revocation of probation. Because of this, an additional restitution fine imposed at the time probation is revoked is unauthorized and must be stricken from the judgment.
Authority:
People v. Urke (2011) 197 Cal.App.4th 766, 779
People v. Chambers (1998) 65 Cal.App.4th 819
Second Holding:
There is a distinction between a probation grant in which imposition of sentence has been suspended (meaning, no sentence has been declared) and one where sentence has been imposed (meaning, a term has been specified) with the execution of that term suspended during the term of probation. In the former (imposition of sentence suspended), on revocation the court is free to choose whatever sentence options were available had probation never been granted. In the latter, the only choices are to reinstate probation or to revoke probation and order the previously imposed sentence executed.
Authority:
PEN 1203.2(c)
People v. Howard (1997) 16 Cal.4th 1081
People v. Scott (2014) 58 Cal.4th 1415, 1424
Third Holding:
The letter from CDCR did not constitute a recommendation for recall of the sentence and resentencing under section 1170.1 that the sentence be modified. It was merely a letter seeking clarification on whether a lawful sentence had been imposed. Thus, the court could not base its resentencing on a response to the notice contemplated by section 1170.1.
Authority:
PEN 1170.1
People v. Codinha (2023) 92 Cal.App.5th 976, 986-987
People v. Singleton (2025) 113 Cal.App.5th 783, 791–792
Fourth Holding:
When the parties negotiate a plea agreement that grants probation incorporating and conditioned upon the service of a specified term in custody, the resulting term of incarceration constitutes a material term of, the parties’ agreement. As such, the term is not subject to subsequent modification without the consent of both parties, and cannot be altered solely on the basis of the trial court’s general statutory authority to modify probation during the probationary period. Further, a plea agreement requiring an unauthorized sentence is not enforceable. On the other hand, once the court approves a plea bargain, it cannot change the agreement without the consent of the parties. When a guilty plea is invalidated the parties are generally restored to the positions they occupied before the plea bargain was entered.
Authority:
People v. Segura (2008) 44 Cal.4th 921, 931, 935
In re Daniel M. Williams (2000) 83 Cal.App.4th 936, 945 [the trial court cannot approve a plea bargain that calls for an unlawful sentence]
People v. Aragon (1992) 11 Cal.App.4th 749, 756–757
People v. Baries (1989) 209 Cal.App.3d 313, 319 [The concurrent sentence was unauthorized and could not have been lawfully imposed. It must be vacated, and the trial court must give the defendant, if she chooses, the opportunity to withdraw her plea since it cannot be honored.]
People v. Griffin (2005) 128 Cal.App.4th 1112, 1119