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Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth GARDNER, Defendant and Appellant.

No. A046057.

Decided: November 21, 1990

C. Elliot Kessler, Berkeley, First Dist. Appellate Project, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Stan M. Helfman, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant asserts sentencing errors after he pled nolo contendere to a misdemeanor charge of driving while under the influence of alcohol and drugs (Veh.Code, § 23152, subd. (a)) and possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)).   We affirm the judgment.


On January 6, 1988, appellant was charged with possession of a controlled substance (methamphetamine), and the Vehicle Code violation.   On February 24, 1988, appellant entered his nolo contendere plea to the Vehicle Code violation and was admitted to summary probation for a period of three years.   On March 31, 1988, the court suspended criminal proceedings and placed appellant on diversion.

On September 29, 1988, the court ordered diversion terminated, criminal proceedings reinstated, and a bench warrant issued for appellant's arrest.   Thereafter, on December 9, 1988, appellant withdrew his plea of not guilty to the possession of a controlled substance.   On January 27, 1989, appellant was sentenced to the low term of 16 months.

On February 8, 1989, at appellant's request, the sentence was recalled and the matter was referred to the probation department placement division for consideration of residential treatment or other treatment to address appellant's substance abuse.

On March 2, 1989, imposition of sentence was suspended and the court placed appellant on probation for a period of three years on the conditions he participate in and satisfactorily complete the Solano County Drug Intensive Treatment Program, abstain from use of alcohol and illegal drugs, and submit to drug and alcohol testing.

On April 18, 1989, after advisements and waivers, appellant admitted violating probation by using methamphetamine and alcohol;  probation was ordered revoked.   On May 5, 1989, the court imposed the middle term of two years for possession of a controlled substance.

The factual basis for appellant's original pleas is taken from his probation report.   On December 23, 1987, appellant was observed by police driving erratically.   He was pulled over.   Police detected an odor of alcohol on his breath and observed his eyes were bloodshot.   Appellant performed field sobriety tests in a poor manner.   He was arrested for violation of Vehicle Code section 23152, subdivision (a).   During booking search, a small packet containing methamphetamine was found;  appellant was then booked again for violation of Health and Safety Code section 11377, subdivision (a).


IWhether the Court Was Required to Impose a 16–Month Sentence

Appellant states his first argument in the form of a syllogism.  Penal Code section 1170, subdivision (d) 1 states that after recall of a sentence, a court may resentence the defendant “provided the new sentence, if any, is no greater than the initial sentence.”   The initial sentence in his case was 16 months.   The term imposed on resentence was two years.   Two years is greater than 16 months.   Therefore, the court violated section 1170, subdivision (d).   He claims the wrongfulness of the new sentence is unaffected by the fact that between the recall of the sentence and the imposition of the new sentence, the court granted and then revoked probation.

The People argue there was no violation of subdivision (d) because after the recall there was no new sentence imposed since appellant was granted probation.   The People focus on the words “if any” contained in section 1170, subdivision (d) which requires that after recall of a sentence, the court must resentence a defendant as if he had not been previously sentenced “provided the new sentence, if any, is no greater than the initial sentence.”

 A decision to grant probation is expressly identified as a sentence choice in California Rules of Court, rule 405(f).2  (People v. Cushway (1987) 193 Cal.App.3d 776, 778, 238 Cal.Rptr. 527;  People v. Haynes (1984) 160 Cal.App.3d 1122, 1137–1138, 207 Cal.Rptr. 139.)   Rule 403 governs the applicability of the Judicial Council rules on sentencing.   The Advisory Committee Comment to that rule provides in part:  “[T]he mandate to the Judicial Council in section 1170.3 is limited to criteria affecting the length of prison sentences and the grant or denial of probation.”   Section 1170.3 includes the granting or denying of probation among its list of sentencing decisions to be made by the sentencing court.3  The suspension of imposition of sentence, which was ordered simply to facilitate the grant of probation, was a sentencing decision of the trial court.   It was at this hearing, a hearing held because there had been a recall of the prior sentence, that the court, had it chosen to sentence appellant to prison, could not have sentenced appellant to a term greater than 16 months.   Thus, section 1170, subdivision (d) has no application to the sentencing which occurred on May 5, 1989, after appellant's probation was revoked.

II **

Whether the Sentence Imposed Violates Rule 435(b)(1)


The judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise indicated.Penal Code section 1170, subdivision (d), reads in full:  “When a defendant subject to this section or subdivision (b) of section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.   The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.   Credit shall be given for time served.”

2.   All further references to rules are to the California Rules of Court.  Rule 405(f) reads:  “ ‘Sentence Choice’ means the selection of any disposition of the case which does not amount to a dismissal, acquittal, or grant of a new trial.   It includes the granting of probation and the suspension of imposition or execution of a sentence.”

3.   Section 1170.3 provides in pertinent part:  “The Judicial Council shall seek to promote uniformity in sentencing under Section 1170, by:“(a) The adoption of rules providing criteria for the consideration of the trial judge at the time of sentencing regarding the court's decision to:“(1) Grant or deny probation.“(2) Impose the lower or upper prison term.“(3) Impose concurrent or consecutive sentences.“(4) Determine whether or not to impose an enhancement where that determination is permitted by law.”

FOOTNOTE.   See footnote *, ante.

BENSON, Associate Justice.

KLINE, P.J., and SMITH, J., concur.