IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
January 23, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KATHLEEN ALYSSA VINSON, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CRF064620, CRF07992, CRF091882)
The opinion of the court was delivered by: Raye , P. J.
P. v. Vinson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The sole issue before us is whether defendant Kathleen Alyssa Vinson must be remanded for sentencing or whether, as a matter of law, her Yolo County sentence is to be served concurrently with her Nevada State sentence. (Pen. Code, § 669.) We conclude that a reasonable inference can be drawn from the record that the trial court, unaware it could order the sentences to be served concurrently, adopted the recommendation of the probation department to order the sentences to be served consecutively. As a result, section 669 does not apply as a matter of law and the case must be remanded for sentencing.
The facts concerning the underlying crimes are irrelevant to this appeal. Suffice it to say, defendant entered a plea agreement wherein she pleaded no contest to various theft charges. At the time she was sentenced in Yolo County, she was serving a 48- to 120-month prison sentence in Nevada. She was yet to be tried for crimes in other jurisdictions.
The relevant facts relate exclusively to the sentencing proceedings. After deciding to ignore the fact that defendant would be tried and sentenced in the future in other jurisdictions, the court recognized that the Nevada judgment was final, saying, "So the notion being we can't do anything with what the other counties might later on do, but there's a bit of finality to the Nevada sentence, and would we recommend concurrent or consecutive."
The court further ruminated: "I don't have some public policy need to assert the independent judgment of the California court, but it seems to be funny to me to make it concurrent with a sentence over which there's no control." Defense counsel offered authority in support of the court's ability to order the sentences to be served concurrently. The court referred the matter to probation for a recommendation.
The probation report stated, in relevant part: "This report has been completed in compliance with Penal Code section 1170. Pursuant to Rule of Court 4.451(b) this sentence is imposed without reference to the sentence imposed in other jurisdictions and the Court must order that the determinant term be served commencing with the completion of the sentence imposed by other jurisdiction[s], specifically the State of Nevada."
This appeal turns on our interpretation of the following statement made by the trial court at sentencing: "Pursuant to Penal Code Section 1202.4(b) -- oh, I notice probation makes reference to defendant's Nevada case, and it's indicated that I should indicate that the California sentence would be served commencing with completion of any pending sentence in Nevada."
Penal Code section 669 states, in relevant part: "When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] . . . Upon the failure of the court to determine how the terms of imprisonment on the second . . . judgment shall run, the term of imprisonment on the second . . . judgment shall run concurrently."
The Attorney General concedes the court was unaware of its discretion or the scope of its discretion. According to the Attorney General, the trial court did not appreciate that it could order defendant to serve her term concurrently with her Nevada prison term. Rather, it relied on the probation report's erroneous conclusion that the sentences had to run consecutively.
Defendant, however, insists the sentence must run concurrently as a matter of law because the trial court did not, in the language of Penal Code section 669, "direct" or "determine" whether the sentence should be consecutive or concurrent. The question is whether the court's reference to the probation department's recommendation that the sentences run consecutively means it misunderstood its discretion and deferred to the recommendation, or whether it failed to direct or determine the sentence.
The court's comments are ambiguous to say the least. As the Attorney General reports, "the court did not specifically state a sentencing choice." But we agree with the Attorney General that the record shows the court was not silent on the sentencing choice. This is not a case where the issue was missed or ignored. Rather, the court did not seem to understand the scope of its discretion and relied on the erroneous recommendation by probation that the sentences must be served consecutively. It is reasonable to infer from the court's comments that it directed the sentence by adopting the probation department's recommendation. Thus, we agree with the Attorney General the case should be remanded to give the court the opportunity to exercise its discretion to determine whether defendant should be sentenced consecutively or concurrently.
The matter is remanded with directions that the trial court exercise its discretion to determine whether defendant's sentence will run concurrently with or consecutively to her Nevada prison term. In all other respects, the judgment is affirmed.
We concur: HULL , J. DUARTE , J.
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