IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
April 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AMADOR MARTINEZ SOTO, DEFENDANT AND APPELLANT.
Super. Ct. No. CM027766
The opinion of the court was delivered by: Nicholson , J.
P. v. Soto CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Amador Martinez Soto pled no contest to cultivating marijuana and was placed on probation. He later admitted an allegation he had violated a term of his probation by failing to report to his probation officer, while a second allegation he violated his probation by illegally entering the United States was dismissed without a Harvey*fn1 waiver.
At sentencing, however, the court considered a supplemental probation report that mistakenly recited that the illegal entry allegation had been dismissed with a Harvey waiver. It then stated that the factual basis of defendant's violation of probation was his illegal re-entry into the United States; it adjudged him "guilty" of that violation, and sentenced him to prison for the underlying marijuana charge.
On appeal, defendant contends (and the People concede) that his due process rights were violated because the trial court found at sentencing he had violated his probation by illegally reentering the country, based upon a dismissed allegation neither admitted by defendant nor proved by the People, and which defendant had not agreed the court could consider at sentencing. (See Harvey, supra, 25 Cal.3d at p. 758 [it is "improper and unfair" to permit the sentencing court to consider any facts underlying dismissed counts, absent an agreement to the contrary].) The court's finding that defendant was guilty of an illegal entry was unsupported by substantial evidence and its reliance at sentencing upon an unproved allegation a violation of due process of law. (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1065-1066; see, generally, People v. Vickers (1972) 8 Cal.3d 451, 459-462.)
Defendant acknowledges that his counsel failed properly to preserve his claim for appeal by failing to object in the trial court at sentencing; he argues, in the alternative, that defense counsel rendered ineffective assistance of counsel by failing to do so. (See People v. Scott (1994) 9 Cal.4th 331, 353.) Notwithstanding defense counsel's forfeiture, the People acknowledge the merits of defendant's claim and urge this court in the interests of judicial economy (and to forestall a subsequent habeas corpus petition on this issue) to simply remand the matter for resentencing. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
We agree that we may consider the merits of defendant's contention on direct appeal where, as here, there is a record adequate for such a review (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267) and, under the circumstances, it is sensible to do so.
The sentence is reversed and the matter remanded to the trial court for resentencing. The court shall render findings consistent with defendant's admission he violated probation by failing to report to his probation officer as required by the September 27, 2007, order of probation.
We concur: BLEASE , Acting P. J. HOCH , J.