PEOPLE v. HOWARD (1996)

Cadelia Louise Howard (appellant) timely appeals from an order by which the San Francisco Superior Court revoked her probation and ordered execution of a four-year prison sentence that was imposed on October 25, 1994, but execution of which was suspended, after she entered a plea of guilty to one count of transportation of cocaine base (Health & Saf.Code, § 11352, subd. (a)).

Appellant contends she is entitled to a remand for resentencing because the trial court erred by “failing to exercise its discretion” to impose a mitigated sentence of three years, in light of evidence that she had been reliable about reporting to her probation officer, had tested negative for drug use, had maintained steady employment, and had complied with other terms and conditions of her probation.   We agree with appellant that it was within the trial court's jurisdiction and discretion to reduce her previously imposed-but-suspended sentence.   Accordingly, we will reverse and remand for resentencing.

I. Factual And Procedural Background

The evidence adduced at the probation revocation hearing on June 26, July 12 and July 19, 1995, is as follows:  At approximately 8:30 p.m. on April 14, 1995, San Francisco Police Officers John Monroe and Paul Lozada were on duty in the narcotics division.   They received a telephone call from an anonymous informant, stating that appellant was selling drugs from 2026 Lane Street in San Francisco.   Officer Monroe determined that appellant lived at the address to which the caller had referred, and that she was on probation with a condition permitting a warrantless search of her person and residence.   Officers Monroe and Lozada then went to the Lane Street address, where they saw appellant in a light jacket and pants standing outside at the back door, and announced that they were going to execute a search pursuant to the probation condition.   At that point, appellant immediately turned and went into her apartment, walking toward the rear of the apartment with her back to the officers.   Officer Lozada saw appellant reach into her pants and make a motion with her hand extended in the direction of a chair.   When she turned around, Officer Lozada told Monroe that appellant had thrown a bag of white powder on a chair.   Officer Monroe saw the bag and seized it.   It was stipulated that the bag contained .26 grams of cocaine.   Officer Lozada arrested two other people who were present at the Lane Street address that night—a woman who claimed to be Dolores Shaw (but was actually Cheryl Brooks), and Jerome Gray—on drug possession charges.   Gray had cocaine in his pocket, and Brooks had cocaine in a brown coin purse in her pocket.   Neither Brooks nor Gray were near the chair on which the officers found the bag of cocaine.

In her defense, appellant testified that she was simply spending the weekend at the Lane Street residence, and that she was playing pool when the police arrived.   She said she was wearing pajamas, and did not have any drugs or throw down any drugs.   Appellant claimed that she was unaware anyone else at the Lane Street residence had any drugs, and denied that the apartment was rented in her name.

Paul Bryant claimed he was at the Lane Street address on the night of April 14, 1995, and was playing pool when “four or five” police officers arrived.   Bryant denied seeing anything in appellant's hands, and said he did not see appellant throw anything away.

Eric Murphy, who owned the beauty shop at 5273 Third Street that adjoined appellant's premises, testified that he, too, was playing pool with appellant when the police arrived.   Murphy said appellant was holding a pool cue, and nothing else, in her hand when the police came in and handcuffed her.

The real Dolores Shaw testified that she was watching people play pool that night, but went to the beauty shop when she heard the police coming.   She claimed that a “tall guy” (who she believed was Jerome Gray) tossed something and then went out the back door to the beauty shop.   Shaw said the only thing appellant had in her hands was a pool cue.

Appellant called two other witnesses, Stephano Martinez and Marian Sullivan, who testified about her employment.   Martinez said that he had employed appellant in his janitorial service since the end of February 1995, and that she was a good worker.   Sullivan said he had owned a business called Sullivan's Video Games, and had employed appellant there for approximately one year as a collector and repair trainee.   Sullivan, too, said appellant was a good and honest employee with whom he had “no problems ․ whatsoever.”

After the April 14, 1995 incident, a supplemental probation report was prepared by senior probation officer Tuan Dam. He recommended that appellant be continued on probation because she had complied with the terms and conditions previously imposed.

Appellant's supervising probation officer, William Rhue, confirmed that appellant had tested negative for drug use and reported to him monthly as required.   Messrs. Dam and Rhue both admitted, however, that she would be in violation of her probation if she were found in possession of cocaine.   Mr. Rhue also testified that appellant had reported having a job but, when asked to provide pay stubs to verify her employment, had failed to provide him with the requisite proof.

At the conclusion of the hearing, the court found that appellant had violated the terms of her probation in that “a significant amount of [cocaine]” had been found at the time of her arrest.   The court thereupon imposed the sentence of four years in state prison, adding only that “further probation is not appropriate in this case.”

II. Discussion

Appellant appears to concede there is substantial evidence to support the trial court's findings that she violated both the express and implied terms of her probation by being in possession of cocaine on the evening of April 14, 1995, and that further probation was not appropriate.   Her only contentions on appeal are that:  (1) Upon revoking her probation, the trial court had the authority and discretion to reduce her previously imposed, but suspended, four-year prison sentence to the mitigated term of three years (Health & Saf. Code, § 11352, subd. (a));  and (2) The court abused its discretion by failing to consider the mitigating factors she presented at the probation revocation hearing.¹  For reasons we shall explain, we agree with appellant that the trial court had jurisdiction and discretion to reduce the sentence that had been imposed, but execution of which had been suspended, when she was placed on probation in 1994.

A. The Fourth District's Decision in People v. Chagolla.

In People v. Chagolla (1984) 151 Cal.App.3d 1045, 199 Cal.Rptr. 181 (Chagolla ), the defendant pled guilty in 1979 to a charge of attempted murder (Pen.Code, former § 217),² and admitted an allegation supporting an enhancement for infliction of great bodily injury (§ 12022.7).   (Chagolla, supra, at p. 1047, 199 Cal.Rptr. 181.)   After accepting Chagolla's plea, the trial court imposed a sentence of four years in state prison for the attempted murder, plus three years for the enhancement, but suspended execution of the sentence and placed him on probation for three years with a condition that he violate no laws.  (Ibid.) In 1981, Chagolla was convicted of a misdemeanor count of being an accessory to a felony (§ 32), and was sentenced to county jail for six months.  (Chagolla, supra, at p. 1047, 199 Cal.Rptr. 181.)   Based on this second conviction, the trial court found Chagolla to be in violation of the terms of his probation, and ordered his probation revoked.   The trial court also ordered execution of the previously suspended sentence, but stayed the portion of the sentence attributable to the enhancement, effectively reducing the seven-year prison sentence to four years.  (Id. at pp. 1047–1048, 199 Cal.Rptr. 181.)

 On appeal, the People contended that the trial court was without jurisdiction to reduce Chagolla's sentence.  (Chagolla, supra, 151 Cal.App.3d at p. 1049, 199 Cal.Rptr. 181.)   The Fourth District agreed, holding as follows:  “The original sentence of seven years became a final judgment as neither Chagolla nor the People appealed therefrom.   The trial court was without jurisdiction to modify or change the final judgment and is required to order into execution that judgment after revocation of probation.   The attempted modification of the previously imposed sentence was beyond the trial court's jurisdiction․”  (Id. at p. 1049, 199 Cal.Rptr. 181.)   The Chagolla court relied on rule 435(b)(2) of the California Rules of Court,³ which states:  “If the execution of sentence was previously suspended, the judge shall order that the judgment previously pronounced be in full force and effect.”  (Italics added for emphasis.) ⁴

B. The Supreme Court's Decision in People v. Karaman Undermines the Rule of Chagolla.

The central legal issue presented by this appeal is whether a recent Supreme Court case undermined or implicitly overruled Chagolla.   In People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100 (Karaman ), the court held that, so long as the defendant remains in the actual or constructive custody of the trial court, the court retains jurisdiction to reduce a state prison sentence that has been imposed, but stayed before execution of the sentence.   The. Karaman court framed the precise issue before it as follows:  “In this case we must decide whether a trial court loses jurisdiction over a defendant, and the power to modify the defendant's sentence in a manner more favorable to the defendant, where the court has imposed a state prison sentence, has ordered a brief stay of execution of judgment in order to permit the defendant to put his or her personal affairs in order prior to commencement of execution of the sentence, and the clerk of the court has entered that sentence in the minutes of the court.”  (Id. at pp. 338–339, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   The district attorney had argued that jurisdiction is lost once the sentence is entered into the minutes of the court.   The defendant countered with an argument that jurisdiction to modify is retained until execution of the sentence is commenced.  (Ibid.)  The Supreme Court agreed with the defendant, and held as follows:  “[U]nder these circumstances, the trial court retains jurisdiction to modify the defendant's sentence by imposing a lesser sentence at any time prior to commencement of execution of the sentence.”  (Karaman, supra, at p. 339, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

 The Karaman court began its analysis by examining fundamental principles of jurisdiction of the trial courts in matters of criminal sentencing:  “Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.  [Citations.]  Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant.  [Citation.]  If, however, the trial court ‘retains in itself the actual or constructive custody of the defendant and the execution of his sentence has not begun,’ the court may vacate and modify the sentence.”  (Karaman, supra, 4 Cal.4th at p. 344, 14 Cal.Rptr.2d 801, 842 P.2d 100, quoting In re Black (1967) 66 Cal.2d 881, 888, 59 Cal.Rptr. 429, 428 P.2d 293;  see also People v. Heinold (1971) 16 Cal.App.3d 958, 963, 94 Cal.Rptr. 538.)   In a criminal case, the Karaman court explained, a judgment is rendered when the trial court orally pronounces sentence (Karaman, supra, 4 Cal.4th at p. 344, fn. 9, 14 Cal.Rptr.2d 801, 842 P.2d 100), but, where the judgment is for incarceration in state prison, execution of the judgment does not begin until a certified “commitment document” (i.e., a copy of the trial court's minute order or a certified abstract of judgment) is delivered to the county sheriff,⁵ who thereafter delivers the defendant to the warden of the state prison (id. at pp. 344–345, 14 Cal.Rptr.2d 801, 842 P.2d 100;  see also § 1213 et seq.;  In re Black, supra, 66 Cal.2d at p. 890, 59 Cal.Rptr. 429, 428 P.2d 293;  People v. Heinold, supra, 16 Cal.App.3d at p. 963, 94 Cal.Rptr. 538).   In this regard, the Karaman court discussed People v. Banks (1959) 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102 (Banks ), in which the Supreme Court had previously considered the effect of a stay of execution in the context of the trial court's authority to grant probation for certain offenses.   In that situation, the Karaman court observed:  “[U]pon entry of a guilty plea, if the trial court chooses to retain jurisdiction under the statutes dealing with probation, it may pronounce judgment and suspend its execution by refraining from issuing a commitment of the defendant to the prison authority.   We stated:  ‘The critical requirement for control over the defendant and the res of the action is that the court shall not have surrendered its jurisdiction in the premises by committing and delivering the defendant to the prison authority.’  [Citation.]”  (Karaman, supra, 4 Cal.4th at p. 345, 14 Cal.Rptr.2d 801, 842 P.2d 100, italics added by Karaman court, quoting Banks, supra, 53 Cal.2d at p. 384, 1 Cal.Rptr. 669, 348 P.2d 102.)

Turning to the issue presented on the facts before it, the Karaman court next examined the argument of the district attorney that the trial court's jurisdiction to modify a sentence “terminates either at the point the judgment is entered in the minutes of the court or at the time a defendant begins to serve his or her sentence, essentially whichever occurs first, so that, in the present case, despite the circumstance that execution of the sentence had been stayed for one week and defendant had not yet been delivered into the custody of the prison authorities, entry of the judgment in the court's minutes deprived the court of authority to modify the sentence.”   (Karaman, supra, 4 Cal.4th at pp. 345–346, 14 Cal.Rptr.2d 801, 842 P.2d 100, italics in original.)   The Karaman court rejected this argument, noting that it was premised on a misapplication of two Supreme Court precedents, People v. McAllister (1940) 15 Cal.2d 519, 102 P.2d 1072 (McAllister ), and Thomas, supra, 52 Cal.2d 521, 342 P.2d 889.  (Karaman, supra, 4 Cal.4th at pp. 347–350, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

In McAllister, the court held:  “If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced.   On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of said sentence, then it is proper for the court to change the sentence originally pronounced.”  (McAllister, supra, 15 Cal.2d at pp. 526–527, 102 P.2d 1072.)   Under this rule, the Supreme Court sustained a trial court ruling by which an alternative jail term was added to the defendant's sentence in the afternoon court session, after only a monetary fine had been imposed in the morning court session but not yet entered into the clerk's minutes.  (Id. at pp. 520–521, 102 P.2d 1072.)

In Thomas, the Supreme Court considered the McAllister rule in the circumstance where a six-month term of incarceration in county jail was imposed in the morning court session but, before the sentence was entered in the court minutes and before the defendant began serving his county jail term, the sentence was increased during the afternoon court session to a minimum two-year state prison term because the trial court discovered a prior offense that had been overlooked.   Again, our Supreme Court sustained the trial court's jurisdiction to increase the sentence.  (Thomas, supra, 52 Cal.2d at pp. 521, 525, 536, 342 P.2d 889.) ⁶

The “ ‘jurisdictional problem’ ” in McAllister and Thomas, unlike that in Karaman, was “ ‘․ the trial court's power, after rendition of judgment, to change a valid sentence so as to increase the punishment.’ ”   (Karaman, supra, 4 Cal.4th at p. 350, 14 Cal.Rptr.2d 801, 842 P.2d 100, italics in original, quoting Thomas, supra, 52 Cal.2d at p. 529, 342 P.2d 889.)   As the Karaman court explained, the first clause of the McAllister rule—the so-called “minute-entry rule”—was established “to provide litigants with some finality to legal proceedings.”  (Karaman, supra, 4 Cal.4th at p. 348, 14 Cal.Rptr.2d 801, 842 P.2d 100, citing Carpentier v. Hart (1855) 5 Cal. 406, 407.) ⁷  The second clause of the McAllister rule, forbidding an increase in an authorized sentence once execution of the sentence has begun, reflects the concern that such an increase violates the double jeopardy clause of the state and federal constitutions.   (Karaman, supra, 4 Cal.4th at pp. 348–349, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

The Karaman court articulated several reasons for abandoning the “minute-entry rule” in the factual context there presented:  “First, the objective of obtaining finality in legal proceedings is just as well served by concluding that common law jurisdiction to mitigate a prison sentence expires upon commencement of execution of the sentence, as it would be served by concluding that jurisdiction is retained by the trial court only until the clerk of the court enters the judgment in the minutes of the court.”  (4 Cal.4th at pp. 350–351, 14 Cal.Rptr.2d 801, 842 P.2d 100.)  “Second, to apply the minute-entry rule to determine whether jurisdiction remains in the trial court would have the inequitable effect of making jurisdiction depend upon whether—and how promptly—the clerk of the court performed his or her ministerial duties.   For example, the failure of the clerk of the court to enter the judgment in the minutes would permit a defendant to seek modification of the sentence, whereas regular entry of the judgment in the minutes would deprive the court of jurisdiction to modify the judgment even though the court had not yet relinquished custody of the defendant to the executive officer.”  (Ibid.)

Furthermore, the Karaman court reasoned, the “minute-entry rule” “is inconsistent with the modern statutory sentencing scheme, under which the Legislature explicitly has granted trial courts jurisdiction to mitigate a state prison sentence even after execution of a sentence has commenced.”  (4 Cal.4th at p. 351, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   Specifically, trial courts retain jurisdiction to modify a prison sentence for 120 days after execution of the sentence has commenced, “provided the new sentence ․ is no greater than the initial sentence.” (§ 1170, subd. (d).)  Under this provision, the trial court may resentence the defendant “for any reason rationally related to lawful sentencing” and “may then impose any otherwise lawful resentence suggested by the facts available at the time of resentencing.”  (Dix v. Superior Court, supra, 53 Cal.3d at p. 456, 279 Cal.Rptr. 834, 807 P.2d 1063.)   Finally, the Karaman court observed, “As a practical matter, to require a trial judge (who desires to resentence a defendant whose sentence has been stayed) to delay resentencing until the actual commencement of the defendant's prison term generally would entail a considerable waste of time and expense.”   (4 Cal.4th at p. 352, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

In sum, then, Karaman held:  “[W]here the sentence is to a term of imprisonment, the trial court retains jurisdiction, during the period a stay is in effect and at any time prior to execution of the sentence, to reconsider the sentence and vacate it or impose any new sentence which is not greater than the initial sentence, just as it may do so on its own motion pursuant to section 1170, subdivision (d), within 120 days after the court has committed the defendant to the prison authorities.”  (Karaman, supra, 4 Cal.4th at p. 352, 14 Cal.Rptr.2d 801, 842 P.2d 100, italics added.)

C. In People v. Colado, the Fourth District Rejects Argument that Karaman Implicitly Overruled Chagolla.

In People v. Colado (1995) 32 Cal.App.4th 260, 38 Cal.Rptr.2d 57, review denied (Colado ), the Fourth District was asked to decide whether Karaman implicitly overruled Chagolla, and permitted a judge upon revoking probation to impose a new and lesser sentence than originally imposed.   The defendant in Colado was first convicted of possessing heroin for sale and then, while on probation for that offense, convicted of selling heroin while armed with a firearm.   For this second offense, he was sentenced to the five-year upper term with a four-year weapons enhancement, but execution of that sentence was suspended and he was once again placed on probation.   Colado did not appeal from this nine-year sentence or the second order of probation.   Upon being convicted for a third time of drug and firearms offenses, his probation was revoked.  (32 Cal.App.4th at pp. 261–262, 38 Cal.Rptr.2d 57.)   Believing he was “compelled” to do so, the trial judge imposed the previously suspended nine-year sentence, but said, “I frankly ․ would have given the mid term in this matter․”  (Id. at p. 262, 38 Cal.Rptr.2d 57.)

On appeal, Colado argued that the trial court had the authority to modify the previously imposed but stayed, and unappealed, nine-year sentence.   Relying on Chagolla, the Fourth District rejected Colado's argument, holding that a sentence of imprisonment becomes “final” for purposes of the trial court's jurisdiction to modify it when it is entered into the minute book, and “final” for all purposes upon expiration of the time to file a notice of appeal.   (32 Cal.App.4th at pp. 263–264, 38 Cal.Rptr.2d 57.)

D. Under the Rule of Karaman, the Trial Court Had Jurisdiction to Modify Appellant's Sentence Prior to Execution, and Discretion to Impose the Mitigated Term for Transportation of Cocaine.

 Division Two of this court recently criticized and expressed disagreement with Colado, as follows:  “[Colado ] interpreted Karaman to mean that a court loses jurisdiction to modify a valid sentence as soon as the sentence is entered into the minutes.   While Colado recognizes that Karaman departs from this principle, it explains away Karaman 's direct rejection of the minute-entry rule in all cases where the modification of punishment is not an increase by limiting its holding to situations dealing with ‘the mechanics of a short stay of execution.’  [Citation.]  Karaman, the Colado court holds, does not apply to cases where execution of a sentence has been stayed pending successful completion of probation.”   (People v. Young (1995) 38 Cal.App.4th 560, 568, fn. 7, 45 Cal.Rptr.2d 177 (opn. of Phelan, J.).)   The brief discussion of Colado in Young was dicta because the latter case involved only a restitution fine and not a modification of a term of imprisonment.  (Ibid.;  see also Karaman, 4 Cal.4th at p. 351, fn. 17, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   Because the instant case presents the precise issue addressed by the Colado court, however, we must now squarely confront our disagreement with that court's interpretation of Karaman.

It is fair to note, as did the Colado court, that Karaman did not “explicitly address the precise procedural situation” of a “grant of probation.”  (Colado, supra, 32 Cal.App.4th at p. 263, 38 Cal.Rptr.2d 57.)   Karaman involved only a short stay of execution of a prison sentence that expired before the time to appeal had run, and not any grant or revocation of probation.   However, the Karaman court observed that the trial court's jurisdiction over a probationer continues after sentence is pronounced, after the sentence is entered in the minutes of the court, and until the time the court issues and delivers a commitment document to prison authorities.   (Karaman, supra, 4 Cal.4th at p. 345, 14 Cal.Rptr.2d 801, 842 P.2d 100, citing People v. Banks, supra, 53 Cal.2d at p. 384, 1 Cal.Rptr. 669, 348 P.2d 102.)   It is, thus, likely that the Supreme Court was aware its holding would be extended to validate trial court orders involving probationers and—as on the facts of Karaman—the modification of a previously imposed sentence prior to execution.

Although the Colado court properly attempted to distinguish Karaman on its facts, it was simply wrong in holding that, after Karaman, “the ‘minute-entry rule’ remains the ‘appropriate ․ act ․ to fix the point of expiration of the trial court's jurisdiction to modify’ ” a sentence of imprisonment.  (Colado, supra, 32 Cal.App.4th at p. 263, 38 Cal.Rptr.2d 57, quoting Karaman, supra, 4 Cal.4th at p. 351, fn. 17, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   The quoted language from Karaman on which the Colado court relied was the Supreme Court's discussion of the “ ‘minute-entry rule’ ” as it applies to an “original sentence consist[ing] of a fine only.”  (Karaman, supra, 4 Cal.4th at p. 351, fn. 17, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   It is clear, after Karaman, that the “minute-entry rule” enunciated in McAllister, and clarified in Thomas, retains vitality in that context (a “fine-only” sentence) and as a limit on the trial court's power to increase a valid sentence of imprisonment after formal entry in the minutes.  (Karaman, supra, 4 Cal.4th at p. 350, and fn. 16, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   It is equally clear after Karaman, however, that the “minute-entry rule” does not determine the jurisdiction of the trial court to reduce a valid prison sentence before it has been executed:  “Although ․ a valid sentence may not be increased after formal entry in the minutes, we decline to endorse or perpetuate the notion that a rule precluding alteration of a sentence after entry in the minutes applies even in a case in which, as here, the trial court seeks to exercise its judicial discretion to mitigate the defendant's prison sentence prior to commencement of execution of (or restraint by) that sentence.”  (Karaman, supra, 4 Cal.4th at p. 350, 14 Cal.Rptr.2d 801, 842 P.2d 100, italics in original, fn. omitted.) ⁸

 Several of the reasons stated by the Karaman court for abandoning the “minute-entry rule” in the factual context there apply with equal force here, the principal one being that the “minute-entry rule” is inconsistent with section 1170, subdivision (d), under which the Legislature explicitly has granted trial courts jurisdiction to mitigate a state prison sentence even after execution of a sentence has commenced.   The “practical” considerations underlying the Karaman holding are also present in every case in which it is finally determined that the defendant will actually be delivered to prison authorities to begin serving sentence but, for some “reason rationally related to lawful sentencing” (Dix v. Superior Court, supra, 53 Cal.3d at pp. 456, 279 Cal.Rptr. 834, 807 P.2d 1063), the trial court desires to reduce the punishment of a defendant whose sentence has been previously imposed.   In such cases, it would be absurd to require the court to delay resentencing until the actual commencement of the defendant's prison term, with the concomitant waste of time and expense.  (Karaman, supra, 4 Cal.4th at p. 352, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   The better rule—as stated in Karaman—is that the trial court has the power “at any time prior to execution” to impose a new, lesser sentence within the range of lawful punishment authorized by statute for the offense of which the defendant was convicted.  (Ibid.)

 Of course, the Colado court did not simply rely on the “minute-entry rule” to find that the trial court was without jurisdiction to reduce the defendant's sentence upon revocation of probation.   It also distinguished Karaman on the basis that the order before it, by which probation was granted and sentence was imposed but then suspended, was appealable.   That is true.  (People v. Harty (1985) 173 Cal.App.3d 493, 500–501, 219 Cal.Rptr. 85.)   That order became “final” when the defendant in Colado failed to take an appeal from that order.⁹  (People v. Harty, supra, at p. 500, 219 Cal.Rptr. 85.)   But the Colado court engaged in a bit of overstatement when it concluded that the sentencing order became “final for all purposes upon expiration of the time to file a notice of appeal from the judgment.”  (32 Cal.App.4th at p. 264, 38 Cal.Rptr.2d 57.)   Failure to file a timely notice of appeal forecloses further appellate review of matters arising prior to judgment.  (People v. Harty, supra, 173 Cal.App.3d at p. 500, 219 Cal.Rptr. 85.)   But it does not necessarily prevent the trial court from continuing to exercise jurisdiction over the defendant probationer in matters of sentencing.  (See Karaman, supra, 4 Cal.4th at p. 344, 14 Cal.Rptr.2d 801, 842 P.2d 100 [As long as the court “retains in itself the ‘actual or constructive custody of the defendant and the execution of his sentence has not begun,’ the court may vacate and modify the sentence.”];   cf. Lloyd v. Superior Court (1929) 208 Cal. 622, 625–626, 283 P. 931 [where a sentence of imprisonment has been stayed pending appeal, affirmed in toto, and finalized by issuance of a remittitur from the appellate court, the trial court retains jurisdiction to “reduce” that “final” sentence to one of probation so long as execution of the prison sentence has not commenced];  Oster v. Municipal Court (1955) 45 Cal.2d 134, 140, 287 P.2d 755.)

 The Chagolla and Colado courts also relied on rule 435(b)(2) for the proposition the sentencing judge is required to “order that the judgment previously pronounced be in full force and effect.”  (Ibid.)  On its face, rule 435(b)(2) does indeed require the trial court upon revocation of probation to order into effect the previously imposed, but suspended, sentence.   But that rule is not easily reconciled with Karaman, in particular our Supreme Court's discussion of the effect of section 1170, subdivision (d), upon a valid sentence that has been imposed by the trial court and then stayed.   In essence, Karaman—in full accord with section 1170, subdivision (d)—holds that at any time prior to execution of the sentence, and for 120 days after the defendant has been committed to the custody of the Director of Corrections, the trial court has jurisdiction to impose a less onerous sentence within the range of punishment authorized by statute, i.e., to “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.” (§ 1170, subd. (d);  Karaman, supra, 4 Cal.4th at pp. 350, 352, 14 Cal.Rptr.2d 801, 842 P.2d 100 [sustaining jurisdiction of trial court to “reexercise its discretion to mitigate the punishment as it was statutorily authorized to do in the first instance”].)   Thus, to the extent it conflicts with section 1170, subdivision (d), as interpreted in Karaman, rule 435(b)(2), cannot stand.  (Cal. Const., art.   VI, § 6;  People v. Zamarron (1994) 30 Cal.App.4th 865, 872, 36 Cal.Rptr.2d 17.) ¹⁰  A rule of court which conflicts with statutory law cannot stand.

Regardless of any conflict, however, nothing in rule 435 precludes an exercise of re-sentencing authority and discretion pursuant to section 1170, subdivision (d), itself, as expansively construed by the Karaman court to include the period prior to execution as well as the 120 days that follow a commitment to state prison.   Indeed, the Advisory Committee expressly recognizes that the judge who imposes a prison sentence upon revocation of probation “will have the power granted by section 1170(d) to recall the commitment on his or her own motion within 120 days after the date of commitment․”  (See Advisory Com. Comment, rule 435, italics added.)   It is just that, after Karaman, it may be more accurate to say the court “has” the power to modify that sentence at any time until 120 days after the date of the commitment.

 Finally, we note the Colado court failed to consider whether the Chagolla rule is consistent with “the modern statutory ․ scheme” (Karaman, supra, 4 Cal.4th at p. 351, 14 Cal.Rptr.2d 801, 842 P.2d 100), under which the Legislature has explicitly conferred upon trial courts broad authority and discretion to manage defendants who qualify for probation, using sentencing decisions as one of the tools available for that purpose (see People v. Banks, supra, 53 Cal.2d at pp. 384–385, 1 Cal.Rptr. 669, 348 P.2d 102).   At the time the defendant is placed on probation, the trial court has the options of imposing a state prison sentence and suspending execution of that sentence, or of suspending the imposition of sentence. (§§ 1203, 1203.1.)   The trial court may also order, as a condition of probation, that the defendant be incarcerated in county jail for a period of time authorized by law. (§ 1203.1.)   Once the probationary period begins, the court has express statutory authority to “modify or change ” the order by which it suspended execution of sentence. (§ 1203.3, subd. (a).) ¹¹  This provision explicitly contemplates an exercise of jurisdiction to modify a “sentence,” including the power to reduce a felony to a misdemeanor.  (§ 1203.3, subds. (a), (b)(1)(B).)

 Consistent with that provision, it is settled that, “ ‘In granting probation, the trial court retains jurisdiction of the defendant.   During the period of his probation, the probationer remains in the constructive custody of the court and is bound by the terms and conditions of the court's probation order․’ ”  (People v. Johnson (1993) 20 Cal.App.4th 106, 110, 24 Cal.Rptr.2d 628, quoting People v. Borja (1980) 110 Cal.App.3d 378, 382, 167 Cal.Rptr. 813.)   There can be no doubt that, while she was on probation in this case and until such time as the trial court delivered her commitment documents to prison authorities, appellant “remain[ed] in the constructive custody of the court.”  (People v. Johnson, supra, 20 Cal.App.4th at p. 110, 24 Cal.Rptr.2d 628.)   Thus, under the rule of Karaman, as well as section 1170, subdivision (d), and section 1203.3, subdivision (a), the trial court retained the jurisdiction to “vacate and modify” appellant's sentence in a downward direction.  (Karaman, supra, 4 Cal.4th at p. 344, 14 Cal.Rptr.2d 801, 842 P.2d 100, citing In re Black, supra, 66 Cal.2d at p. 888, 59 Cal.Rptr. 429, 428 P.2d 293.)

III. Conclusion

 For the foregoing reasons, that portion of the order revoking appellant's probation by which the trial court imposed a sentence of four years in state prison is reversed.   Because the trial court did not have the benefit of our analysis of Karaman, and gave no indication whether it believed it had jurisdiction to reduce appellant's sentence to the mitigated term or, if it did, whether it would have exercised that jurisdiction in appellant's favor, we will remand to allow the trial court to consider in the first instance whether appellant should be resentenced to a lesser term of imprisonment.¹²

FOOTNOTES

1.   Because we are remanding for resentencing, we need not address appellant's additional argument that the trial court failed to state reasons for its decision to impose the four-year prison term.

2.   All statutory references are to the Penal Code unless otherwise indicated.

3.   All further references to rules are to the California Rules of Court.

4.   The Chagolla court further noted that the original sentence imposed in that case was the product of a plea bargain, which could not be changed unilaterally by action of the trial court.  (151 Cal.App.3d at p. 1051, 199 Cal.Rptr. 181, citing People v. Godfrey (1978) 81 Cal.App.3d 896, 903, 147 Cal.Rptr. 9.)   The present case is distinguishable in that there is no indication the four-year sentence originally imposed was required as part of a plea agreement.   The record reflects that four years was the maximum term rather than a term the prosecution insisted be imposed as a condition of dismissing other charges.   Had the term of the suspended prison sentence been an integral part of prosecution's bargain with appellant, we would readily agree the trial court could not later reduce that term.   As the Supreme Court has noted in the context of resentencing under section 1170, subdivision (d), “․ the resentencing authority conferred by section 1170(d) is as broad as that possessed by the court when the original sentence was pronounced.”   (Dix v. Superior Court (1991) 53 Cal.3d 442, 456, 279 Cal.Rptr. 834, 807 P.2d 1063.)   Clearly, if a trial court approves a plea bargain which specifies the sentence to be imposed, the court under 1170, subdivision (d) cannot simply recall the sentence within the 120–day time period and reduce the sentence without the consent of the prosecution.  (People v. Cunningham (1996) 49 Cal.App.4th 1044, 57 Cal.Rptr.2d 179 [“The People, as well as a defendant are entitled to enforce the terms of a plea bargain.”];  People v. Godfrey, supra, 81 Cal.App.3d at p. 903, 147 Cal.Rptr. 9.)   Similarly, had the plea agreement in this case mandated the four-year suspended sentence as a condition of the prosecution's agreement to dismiss other charges or allegations, the court could not later reduce that sentence at the time probation was revoked.   Respondent raises no claim that the relief appellant seeks would violate the terms of the plea bargain agreement.  (Cf. People v. Karaman (1992) 4 Cal.4th 335, 342, fn. 6, 14 Cal.Rptr.2d 801, 842 P.2d 100.) Prosecutors are free to expressly condition their plea agreements on a specific prison sentence, and thereby preclude any reduction of a suspended prison term when there is a subsequent probation violation.

5.   Until such time as the trial court delivers the commitment document, the sheriff is acting as an officer of the court, restraining the defendant within the custody of the court;  upon delivery of the minute order or abstract of judgment, the sheriff assumes a role as an executive officer carrying out execution of a sentence.  (People v. Thomas (1959) 52 Cal.2d 521, 531–533, 342 P.2d 889 (Thomas ).)

6.   In Thomas, supra, 52 Cal.2d at page 534, 342 P.2d 889, the Supreme Court disapproved a portion of McAllister and subsequent cases to the extent they implied or held “that the trial court loses jurisdiction to correct a sentence for mistake of fact or law after orally pronouncing sentence, and that a trial court is without authority to correct such error even if the sentence has not yet been entered in the minutes of the court.”  (Karaman, supra, 4 Cal.4th at pp. 349–350, 14 Cal.Rptr.2d 801, 842 P.2d 100.)   The Thomas court explained, “Those cases, in our opinion, were manifestly not intended to have the absurd and injurious consequence of precluding a trial judge from timely correction of either a slip of the tongue or an announcement of sentence which is based on a mistake of fact or law, which has not become of record in the minutes, and which has not affected the defendant.”  (Thomas, supra, 52 Cal.2d at p. 534, 342 P.2d 889.)

7.   The “minute-entry rule” enunciated in McAllister and Thomas was “an adaptation to our courts of the common law rule that the trial court may change its judgment only during the term in which the judgment was rendered, but not thereafter.”  (Karaman, supra, 4 Cal.4th at p. 348, and fn. 14, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

8.   In this regard, the Karaman court voiced agreement with a footnote from Thomas, where the court had noted, “Literal application of the McAllister rule would forbid mitigation of punishment in circumstances where mitigation is otherwise proper.”  (Thomas, supra, 52 Cal.2d at p. 529, fn. 5, 342 P.2d 889.)

9.   In this case, appellant points out that she did in fact timely appeal from the judgment of conviction in this case, at least from that portion of the judgment by which the trial court refused to allow her to withdraw her guilty plea.   Because she did not raise any sentencing issue, she has waived any objection to the term of imprisonment initially imposed in this case.   That does not mean, however, that she is foreclosed from challenging the order revoking probation and directing execution of the previously suspended four-year prison sentence.  (People v. Harty, supra, 173 Cal.App.3d at p. 501, 219 Cal.Rptr. 85.)

10.   Although neither the Fourth District in Colado nor any other court has discussed the matter, there is also an arguable conflict between the mandatory language of rule 435(b)(2), and the discretionary language used in subdivision (c) of section 1203.2.   That subdivision provides:  “Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced.   However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect.”  (Italics added for emphasis.)

11.   In relevant part, section 1203.3, subdivision (a), provides:  “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.”  (Italics added.)

12.   Respondent's brief implies that remand would be a futile act.   It claims the argument that appellant should be given a mitigated sentence is “preposterous” because she engaged “․ in the very activity for which she had been previously convicted, and for which she was granted probation.”   We, of course, express no views on the manner in which the trial court should exercise its discretion.   We merely provide appellant the opportunity to present her argument to that court.

PHELAN, Presiding Justice.

PARRILLI and WALKER, JJ., concur.