Opinion
A101095
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. HAROLD JAY KNIGHT, Defendant and Appellant.
A criminal defendant admitted guilt on a drug offense and waived jury trial on the validity of a prior conviction allegation. The trial court mistakenly believed that defendant admitted the prior conviction, and enhanced defendants sentence for the prior strike without first adjudicating its validity. The court recalled the sentence upon realizing its mistake, conducted an evidentiary hearing on the prior, found the allegation true, and resentenced defendant to the same term as originally imposed. Defendant concedes that the trial court had the authority to recall the sentence and resentence him, but claims that the court was required to disregard the prior conviction at resentencing because it lost jurisdiction to adjudicate the allegation. We reject defendants claim and affirm the judgment.
facts
Appellant Harold Jay Knight was charged and convicted upon guilty pleas in three separate cases. In the first case, appellant was charged with several drug offenses committed in April 2000, and it was further alleged that appellant has a prior serious felony conviction strike. (Health & Saf. Code, §§ 11377, subd. (a), 11379.6, subd. (a), 11383, subd. (c); Pen. Code, §§ 667, subds. (d) & (e), 1170.12, subd. (c)(1).) In the second case, appellant was charged with additional drug offenses committed in October 2000 while out on bail on the first case. (Health & Saf. Code, §§ 11377, subd. (a), 11378, 11379, subd. (a); Pen. Code, § 12022.1.) In the third case, appellant was charged with multiple drug offenses committed on separate occasions in January, February, March, and May 2002, and also failure to register as a sex offender. (Health & Saf. Code, §§ 11350, subd. (a), 11359, 11364, 11377, subd. (a), 11379, subd. (a), 11550. subd. (a); Pen. Code, §§ 290, subd. (g)(2), 4573, 4573.6.) It was further alleged that the crimes were committed while appellant was released from custody on the first and second cases and that he has a prior strike. (Pen. Code, §§ 667, subds. (d) & (e), 1170.12, subd. (c)(1), 12022.1.)
On September 25, 2001, appellant pled guilty to manufacturing methamphetamine and waived a jury trial on the validity of the prior strike alleged in the first case. (Health & Saf. Code, § 11379.6, subd. (a).) An evidentiary hearing to present proof of the prior conviction was put over to a future date. That same day, appellant pled guilty to charges in the second case that he possessed methamphetamine for sale and he admitted the on-bail enhancement. (Health & Saf. Code, § 11378; Pen. Code, § 12022.1.)
The matter was continued several times until a hearing on May 2, 2002. The court mistakenly stated that appellant "admitted" the prior felony strike conviction in the first case and proceeded to consider, and deny, appellants motion to strike the conviction for sentencing purposes. The court sentenced appellant to a three-year term for manufacturing methamphetamine, doubled to six years based on the strike. The total term imposed for both the first and second cases was eight years and eight months. The trial court ordered appellant held at county jail until resolution of other pending charges, and remanded him into the custody of the county sheriff.
On July 26, 2002, the trial court recalled its sentence in the first two cases upon realizing that it had failed to make a finding on the strike. The court stated that the sentence "was not legal." The court, over appellants objection, conducted a court trial on the validity of the prior strike on August 19, 2002, and found it valid on November 15, 2002, after taking the matter under submission.
Shortly after, on November 21, 2002, appellant entered guilty pleas in the third case to two counts of possessing methamphetamine and bringing drugs into jail. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 4573.6.) He also admitted the allegation that he has a prior strike conviction.
On December 13, 2002, the court imposed sentence for all three cases. The court resentenced appellant on the first two cases to eight years and eight months, exactly as originally ordered. The court sentenced appellant to four years and eight months on the third case. The aggregate sentence on all cases totals 13 years and 4 months.
discussion
Appellants sole claim on appeal is that the trial court lacked jurisdiction to conduct a trial on the validity of the prior conviction allegation after recalling the sentence. Appellant argues that we should reverse the courts finding on the strike and remand the case for resentencing without the strike allegation.
We conclude that the trial court acted properly in recalling the sentence and adjudicating the prior conviction. Preliminarily, we note that the record is far from clear in establishing that the trial court lost jurisdiction over appellant following the initial imposition of sentence. The parties fail to address the fact that the court did not commit appellant to prison but ordered him held at county jail pending resolution of other charges. While a valid sentence may not be increased after formal entry in the court minutes, the trial court retains jurisdiction to impose a new sentence not greater than the initial sentence prior to execution of the sentence. (People v. Karaman (1992) 4 Cal.4th 335, 350, 353.) Execution of sentence commences with a custodial officers receipt of the certified abstract of judgment committing the defendant to prison. (Id. at p. 345) Here, the court stayed prison commitment, making it doubtful that the courts jurisdiction expired.
Even if jurisdiction expired, as the parties assume, the initial judgment was void and thus subject to recall and correction at any time. "Judicial error (as well as an exercise of judicial discretion) in rendering judgment cannot be corrected by the trial court once jurisdiction has expired, unless the judgment is void on the face of the record." (People v. Karaman, supra, 4 Cal.4th at p. 345, fn. 11, italics altered.) An illegal sentence may be corrected at any time. (People v. Reyes (1989) 212 Cal.App.3d 852, 857.) The initial sentence here was illegal in that the base term was doubled on the conviction for manufacturing methamphetamine without adjudication or admission of a prior conviction or other grounds for the term imposed. The record shows that the court mistakenly thought that appellant had admitted the prior conviction when, in fact, the conviction had been set for court adjudication.
This case is similar to People v. Erbel (1925) 72 Cal.App. 543, 544, where a defendant was sentenced to a higher term authorized for those with prior convictions, but no prior conviction had been charged or proven. The appellate court held that the judgment was void, and remanded the case for resentencing upon the conclusion that "the trial court has power to call the defendant before it and impose a sentence in accordance with law." (Id. at p. 545.)
It is clear that the proper remedy for omitting adjudication of a prior conviction allegation is to conduct a trial on the prior, not to disregard the strike as appellant asserts. In People v. Montes (1959) 173 Cal.App.2d 256, 262, the trial court found a prior conviction true without ever holding an evidentiary hearing because the court mistakenly believed that defendant had stipulated to the validity of the prior conviction. The appellate court reversed the prior conviction finding and remanded the case for a limited new trial on the issue of the challenged prior conviction. (Ibid.) Montes is identical to this case except that the trial court here recognized its error and took steps to correct it. It follows from Montes that appellant would not be absolved of the prior conviction strike even if we found that the trial court was without jurisdiction to make that correction, but would only be entitled to a reversal of judgment and trial of the prior on remand.
In re Candelario (1970) 3 Cal.3d 702, upon which appellant relies, is distinguishable. In that case, appellant admitted a prior conviction but the court entered judgment on the substantive offense alone and committed defendant to prison. (Id. at pp. 704-705.) Over a month later, the court amended the abstract of judgment to add the prior conviction, thus doubling the minimum term of defendants indeterminate sentence. (Id. at pp. 704-706.) The court held the amendment invalid upon concluding that the omission of a prior conviction from the judgment will be inferred as an act of leniency by the trial court unless the record shows that the omission was "not the result of the exercise of judicial discretion." (Id. at p. 705-707.) Unlike the trial court in In re Candelario, the court here included the prior conviction in the judgment and enhanced appellants sentence accordingly. The trial courts failure to adjudicate the prior conviction before imposing sentence implies no act of leniency or other exercise of judicial discretion in appellants favor.
DISPOSITION
The judgment is affirmed.
We concur: Kay, P.J., Reardon, J.