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The People v. Albert Kingsberry

October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALBERT KINGSBERRY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. (Los Angeles County Super. Ct. No. KA058795)

The opinion of the court was delivered by: Bigelow, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

The trial court corrected a sentencing error -- increasing defendant's term in state prison from an unauthorized four years to an authorized six years. Defendant appeals the more severe judgment. We affirm.

FACTS

In October 2002, the People filed an information charging Albert Kingsberry with one count of lewd act upon a child under the age of 14 years. (Pen. Code § 288, subd. (a).)*fn1 The triad of punishments prescribed by section 288, subdivision (a), is three, six or eight years.

On December 6, 2002, Kingsberry pleaded guilty to the charged offense. At his sentencing hearing on March 18, 2003, the trial court suspended imposition of sentence and placed Kingsberry on formal probation for a period of five years on condition that he serve 181 days in the county jail and that he not drink or possess any alcoholic beverage.

On September 4, 2007, the trial court found that Kingsberry had violated the alcohol-related conditions of his probation. The court revoked probation and imposed sentence. Kingsberry did not appeal. The trial court's minute order from September 4, 2007, states that Kingsberry was to be "[i]mprisoned in state prison for a total of 4 years" and that the court had imposed "the mid term of 4 years . . . ." The abstract of judgment filed the same day also indicates a four-year middle term. Both the court's minute order and the abstract of judgment reflect a $20 court security fee imposed pursuant to section 1465.8. The record before us on appeal does not include a copy of a reporter's transcript from the probation violation and sentencing hearing in September 2007.

In June 2010, almost three years after Kingsberry's sentencing, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the sentencing court informing the court that Kingsberry then had an "imminent release date," and that the CDCR had a concern whether the abstract of judgment on which it was acting was erroneous. The CDCR requested that the trial court review its case file to determine if a correction of Kingsberry's documented four-year sentence was required, and if so, to provide the CDCR with a modified abstract of judgment.

On July 15, 2010, the trial court heard arguments on whether it should resentence Kingsberry to a term of six years -- the actual middle term prescribed under section 288, subdivision (a). During the hearing, the court acknowledged that the error as between the four years originally imposed and six years prescribed under section 288, subdivision (a), was its own. The court further stated that it could not "let an illegal sentence stay on the record," and that it had always been the court's intent to impose the "middle term" for Kingsberry's offense. In reply, Kingsberry's counsel argued that a three-year low term could be imposed to avoid an increase in Kingsberry's sentence. The court declined to accept the argument. At the conclusion of the hearing, it resentenced Kingsberry to the six-year middle term prescribed by section 288, subdivision (a). The court again imposed a $20 court security fee under section 1465.8.

Kingsberry appeals.

DISCUSSION

I. Imposition of a Longer Sentence After Finding the Original Sentence was Unauthorized

Kingsberry contends the trial court was prohibited from resentencing him to a term greater than that originally imposed. In other words, Kingsberry argues that either the four-year term he received in 2007 should stand or a lesser term authorized by law should be imposed, and ...


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