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People v. Arce

California Court of Appeals, Fourth District, First Division

May 8, 2017

THE PEOPLE, Plaintiff and Respondent,
JOSE R. ARCE, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Diego County No. SCD257646, Timothy R. Walsh, Judge. Affirmed as modified.

          Eric Anthony Dumars, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heidi Salerno and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.

          BENKE, J.

         Defendant and appellant Jose Rubio Arce is a citizen of the Republic of Mexico and a lawful resident of the United States. In 2015, he pled guilty to possession for sale of one kilo of heroin and one kilo of cocaine. Under the terms of his plea agreement, Arce agreed that he would be sentenced to a total term of five years in jail and that he could ask the trial court to impose a "split sentence" under Penal Code[1] section 1170, subdivision (h)(5), which requires that in eligible cases a trial court suspend the concluding portion of a jail sentence and impose mandatory supervision.

         At the time of his sentencing, the trial court considered Arce's request for a split sentence and denied it. The court noted that upon his release from physical custody, Arce was subject to deportation proceedings initiated by the United States Immigration and Customs Enforcement (ICE). The trial court found that, given the risk Arce would be deported during the period of any mandatory supervision, and thus not be subject to the probation department's supervision or able to participate in the rehabilitative services offered by the department, a split sentence was not a realistic disposition.

         On appeal, Arce argues the trial court erred in finding his immigration status was a complete bar to a split sentence. Arce argues the trial court should have considered the possibility that he would be able to challenge his deportation and stay in this country either temporarily while his immigration status is litigated or, although unlikely, permanently. He notes that a number of other factors that show he was amenable to mandatory supervision, including the fact that he has been in this country lawfully since 2000, has no prior criminal record, is married to a United States citizen and has three children, all of whom are also United States citizens.

         We agree with the trial court that a period of supervision following deportation is impractical and inconsistent with the goals and purposes of the legislation that mandates imposition of split sentences. Split sentences are the preferred disposition in eligible cases because they provide released prisoners with close supervision and supportive services designed to substantially reduce the risk of recidivism. As a practical matter, such supervision and services are not available after a prisoner has been deported.

         Because his conviction for possession for sale of heroin and cocaine makes Arce subject to mandatory deportation and mandatory detention under the terms of the Immigration and Nationality Act, the trial court did not err in denying his request for a split sentence.

         We note the Attorney General concedes the trial court erred in imposing a $156 penalty assessment; accordingly, we vacate the assessment.


         1. Investigation

         On the morning of July 30, 2014, federal law enforcement officers observed the following: a PT Cruiser being driven by Jessica Lopez crossed the border from Mexico at the San Ysidro port of entry; the law enforcement officers followed it to a shopping mall garage in Chula Vista, where Lopez left the vehicle. Shortly thereafter, Arce got in the PT Cruiser and drove it to a Walmart parking lot.

         A Nissan Frontier being driven by Oscar Rodriguez Gonzalez, and being observed by other officers, arrived at the Walmart parking lot at the same time Arce arrived in the PT Cruiser. Both Arce and Gonzalez went into the Walmart; when they came out, Arce drove off in the Nissan Frontier and Gonzalez left in the PT Cruiser. Shortly thereafter, the law enforcement officers stopped the PT Cruiser, searched it and found 16 taped bundles of illegal drugs in a spare tire, including more than a kilo of heroin and more than a kilo of cocaine.

         2. Plea

         Gonzalez was arrested when the contraband was discovered. Gonzalez, Arce and Lopez were later charged with, among other matters, possession for sale of more than a kilo of heroin and possession for sale of more than a kilo of cocaine in violation of Health and Safety Code sections 11351 and 11370.4, subdivision (a)(1).

         Arce pled guilty to both possession for sale charges, and four other counts were dismissed. Arce agreed he would be sentenced to a period of five years in jail. The district attorney agreed Arce could request that his sentence be split under section 1170, subdivision (h)(5) but advised Arce's attorney he would oppose the request.

         3. Sentencing

         Prior to his sentence, the probation department prepared a report that indicated Arce has been a lawful resident of the United States since he arrived here in 2000. The probation report stated: "When defendant is remanded into custody, ICE will place a hold on him until he is released, at which time he will be processed for deportation to Mexico." The probation report also noted that Arce had no prior criminal record. The probation report further stated: "Absent his immigration status, the recommendation in this case would be a split sentence pursuant to PC1170(h)(5)(B), with two years in custody, followed by three years of mandatory supervision."

         Arce filed a statement in mitigation in which he argued that notwithstanding the prospect that following his release he would be subject to deportation proceedings, the trial court should nonetheless impose a split sentence of one year of custody and four years of managed supervision.

         As we indicated at the outset, the trial court declined to impose a split sentence. In particular, although the court noted that in many respects Arce was suitable for imposition of a split sentence, the risk he would be deported undermined the likelihood he would be subject to the managed supervision provided by section 1170, subdivision (h)(5) and the benefits and protections such supervision would provide both the public and Arce. In reaching this conclusion, the trial court noted that managed supervision provides a great deal of prerelease support and a very high degree of monitoring by the probation department upon a prisoner's release.[2]


         When, as here, sentencing is pursuant to section 1170, subdivision (h), the court must impose a split sentence "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case." (§ 1170, subd. (h)(5).) Section 1170, subdivision (h) was enacted as part of the 2011 Realignment Legislation (stats. 2011, ch. 15, § 1; ...

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