Error and/or relief
The defendant was convicted of one count of felony vandalism and one count of misdemeanor vandalism. The court purported to sentence the defendant to a total of three years, with appellant ordered to serve 270 days in county jail and the balance of the three years time on mandatory supervision (a “split sentence”). This was error, because the concept of split sentence applies to felonies only, and the misdemeanor was not subject to mandatory supervision.
First Holding:
Under the Realignment Act, qualifying low-level felony offenders no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer. Pursuant to section 1170(h)(5)(B), the court has discretion to impose a hybrid sentence consisting of county jail followed by a period of mandatory supervision. This option is only available for felony convictions.
Authority:
PEN 1170(h)
People v. Scott (2014) 58 Cal.4th 1415, 1418-1419
People v. Catalan (2014) 228 Cal.App.4th 173, 178
Second Holding:
As reflected in the court’s oral pronouncement and the corresponding minute order, the court “split” the total three-year sentence for both counts, imposing 270 days of jail time and the balance as mandatory supervision.
While respondent points to the subsequent nunc pro tunc order purporting to place appellant on two years of formal probation, a nunc pro tunc order is generally limited to correcting clerical errors and cannot declare that something was done that was not done.
The record indicates that at least some portion of the court’s order imposing mandatory supervision applied to the misdemeanor conviction. As mandatory supervision under section 1170(h)(5)(B) is only applicable to felony convictions, we must remand for resentencing.
Authority:
PEN 1170(h)
People v. Borja (2002) 95 Cal.App.4th 481, 485
Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256