Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 60-026829
BUTZ, J.After finding defendant Helenna Marie Marquez violated her probation as a result of her conviction for vehicle theft in another case, the trial court terminated defendant’s probation, executed a previously suspended eight-year sentence in state prison, and imposed specified fees and fines.
On appeal, defendant contends (1) her attorney’s failure to advise the court of Penal Code section 1170, subdivision (d) (hereafter section 1170(d)) as a sentencing alternative following revocation of probation was ineffective assistance of counsel; (2) the trial court’s exercise of sentencing discretion denied defendant her right to due process of law; and (3) the court erred by imposing the $200 restitution fine (§ 1202.4, subd. (b)(1)) twice. We shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts related to defendant’s crimes are not relevant to this appeal.
On February 14, 2002, defendant was charged in Placer County case No. 62-026829 with possession of methamphetamine for sale (Health & Saf. Code, § 11378--count one) and possession of methamphetamine (id., § 11377, subd. (a)--count two). The complaint alleged defendant had a prior drug conviction (Health & Saf. Code, § 11370.2), had served two prior prison terms (Pen. Code, § 667.5, subd. (b)), and was ineligible for probation (id., § 1203, subd. (e)(4)).
On March 14, 2002, defendant pleaded guilty to count one, admitted the prior drug enhancement and two prior prison term enhancements in exchange for dismissal of count two and the probation ineligibility enhancement, with a promise of no immediate state prison. As part of the plea agreement, defendant agreed to serve one year in county jail followed by six months in a residential treatment program. Defendant further agreed to the court’s imposition of an eight-year prison term, execution of which would be suspended pending defendant’s successful completion of probation.
On May 2, 2002, the court sentenced defendant consistent with the plea agreement. The court also ordered that defendant pay specified fees and fines, including a $200 restitution fine payable to the state Restitution Fund. (§ 1202.4, subd. (b)(1).) Defendant confirmed her understanding that a violation of probation would result in revocation of probation and execution of the eight-year prison sentence.
On May 20, 2003, defendant pleaded guilty in Sacramento County case No. 03F03493 to possession of narcotics. (Health & Saf. Code, § 11377, subd. (a).)
On February 23, 2005, defendant pleaded guilty in Sacramento County case No. 04F10853 to vehicle theft. (Veh. Code, § 10851, subd. (a).)
On March 30, 2005, defendant was sentenced in case No. 04F10853 to 16 months in state prison, and was also sentenced in case No. 03F03493 to a concurrent term of 16 months in state prison.
On April 26, 2005, defendant was remanded into custody at Valley State Prison for Women. She remained in custody until she was released on parole on September 11, 2005.
On September 13, 2005, two days after her release, the Placer County Probation Department filed a petition alleging defendant’s conviction in Sacramento County case No. 04F10853 was a violation of her probation in Placer County case No. 62-026829. The petition notes defendant’s custody status as “Not in Custody--Paroled CDC 09-11-05.” Defendant’s probation was summarily revoked pending hearing on the petition for revocation.
On July 6, 2006, the trial court found the allegations in the petition true.
On March 29, 2007, prior to sentencing, defendant’s counsel discussed with the court the applicability of section 1203.2a for purposes of running defendant’s sentence concurrent with her prior sentence in case Nos. 04F10853 and 03F03493. Defense counsel conceded that defendant had not technically complied with the requirements of section 1203.2a due to her failure to provide written notification of her incarceration to probation, but argued defendant substantially complied with the statute and probation was aware of her incarceration, and requested that the court dismiss the petition alleging violation of probation pursuant to section 1385 and retain defendant’s status on probation. The court asked counsel to provide it with some authority for modifying the sentence, and granted counsel additional time to review defendant’s probation file to determine whether probation was ever notified in writing of defendant’s incarceration. In the meantime, the court sentenced defendant to the previously suspended eight-year prison term and imposed fees and fines, including a $200 restitution fine payable to the state Restitution Fund (§ 1202.4, subd. (b)(1)) and a $200 parole revocation restitution fine, stayed pursuant to section 1202.45.
Section 1203.2a provides, in relevant part, as follows: “The probation officer may, upon learning of the defendant’s imprisonment, and must within 30 days after being notified in writing by the defendant or his or her counsel, or the warden or duly authorized representative of the prison in which the defendant is confined, report such commitment to the court which released him or her on probation. [¶] Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. . . . [¶] Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted. If the defendant is then in a state prison for an offense committed subsequent to the one upon which he or she has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his or her subsequent offense. . . .” (Italics added.)
Defendant filed a timely notice of appeal.
DISCUSSION
I. Sentencing Alternatives After Revocation of Probation
Defendant contends she suffered ineffective assistance of counsel because her trial attorney failed to bring to the court’s attention section 1170(d) for purposes of “resentencing” after revocation of probation and execution of the previously imposed, but suspended eight-year prison sentence. She further contends the court failed to exercise its discretion under section 1170(d) and thus violated her right to due process. Because we find that section 1170(d) is not applicable under the particular facts of this case, we reject both of defendant’s arguments.
Under the statutory scheme governing probation cases, once probation is revoked, “the [previous] judgment shall be in full force and effect.” (§ 1203.2, subd. (c).) Once judgment is rendered, the sentencing court lacks jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170(d). (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829, 1834-1835.) The statutory exception allows a sentencing court, on its own motion, to recall and resentence, subject to the express limitation that it loses such jurisdiction if it fails to recall a sentence within 120 days of the original commitment. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 464.)
Any reduction in an imposed sentence in a probation revocation case, however, must occur “at the postcommitment stage” under section 1170(d). (People v. Howard (1997) 16 Cal.4th 1081, 1094.) Resentencing cannot occur at the time probation is revoked. (Id. at p. 1095.)
Defendant contends her counsel should have informed the court it had discretion to apply section 1170(d) to rectify her failure to provide probation with written notice of her incarceration as required by section 1203.2a, such that it could have modified the eight-year sentence to run concurrent to the 16-month term defendant had just completed. We disagree.
The section 1170(d) exception to the court’s postjudgment jurisdiction to modify a sentence only applies postcommitment. Here, the court was acting precommitment. Execution of defendant’s eight-year prison sentence was suspended pending her successful completion of probation. Once the court found the alleged probation violation true and terminated defendant’s probation, it was required to execute the suspended sentence exactly as originally imposed. Resentencing was not authorized at this precommitment stage of the proceedings. (People v. Howard, supra, 16 Cal.4th at p. 1095.) We therefore reject defendant’s claim of denial of due process.
To establish ineffective assistance of counsel, defendant must demonstrate that her counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 687, 691-692 [80 L.Ed.2d 674, 691-692, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We do not find there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland at p. 694 [80 L.Ed.2d at p. 698]) because, even if defense counsel had brought section 1170(d) to the court’s attention, any argument in that regard would have been futile given the procedural posture in this case. We therefore reject defendant’s claim of ineffective assistance of counsel.
II. Restitution Fine
At the time probation was granted, the trial court imposed a $200 restitution fine payable to the state Restitution Fund. (§ 1202.4, subd. (b)(1).) When the trial court terminated probation and executed the previously suspended sentence, it ordered that defendant “pay a restitution fine to the state [R]estitution [F]und in the amount of $200” pursuant to section 1202.4, subdivision (b)(1). Defendant contends the court erroneously imposed the same fine twice. We disagree.
We find no evidence in the record that the court intended to impose the $200 restitution fine twice. Indeed, as the People correctly point out, the abstract of judgment reflects only one $200 fine pursuant to section 1202.4, subdivision (b). Thus, it is reasonable to interpret the court’s second order as a reiteration of its original order at the time defendant was granted probation. We are aware of no possibility that the Department of Corrections and Rehabilitation will attempt in the future to collect two $200 restitution fines under section 1202.4, subdivision (b); however, in the unlikely event it attempts to do so, defendant may bring a copy of this opinion to its attention.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., ROBIE, J.