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People v. Legge12/10/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Roy Dean Legge was sentenced to prison after he violated the conditions of his probation. Defendant contends on appeal that a one-year enhancement to his sentence was unauthorized. He also challenges the application of certain custody credits.
Procedural Background
Defendant was charged in two separate cases: Santa Clara County Superior Court Cases No. 208746 (Case 46) and No. 208747 (Case 47). The two cases were heard together throughout the proceedings below.
In Case 46 defendant was charged with felony false personation (Pen. Code, § 529) (Count 1), misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) (Count 2), and misdemeanor driving with a blood alcohol level of .08 or higher (Veh. Code, § 23152, subd. (b)) (Count 3). Counts 2 and 3 both contained the additional allegation that defendant had a prior conviction for violating Vehicle Code section 23152, subdivision (b) within the preceding seven years (the DUI prior). The complaint also alleged that defendant had served two prison sentences within the meaning of section 667.5, subdivision (b) (prison priors).
In Case 47 defendant was charged with three counts of felony false personation (§ 529) (Counts 1, 2, and 3), and one count of misdemeanor giving a false name to a peace officer (§ 148.9) (Count 4). This complaint alleged one prison prior. (§ 667.5, subd. (b).)
After initially pleading not guilty, defendant entered into a negotiated plea agreement pursuant to which he pled no contest to Counts 1 and 3 in Case 46 and to Counts 1, 2, and 4 in Case 47. He admitted the prior convictions alleged in both cases. At the sentencing and probation hearing on December 1, 1998 the trial court suspended imposition of sentence and placed defendant on probation for three years. Pursuant to the plea agreement, the court dismissed certain of the counts and priors.
Defendant's probation was later revoked. On July 6, 2001, the trial court sentenced defendant to state prison for three years on Count 1 of Case 47. The court indicated that it intended to add an additional year for a prison prior. Defendant's attorney told the court that he thought the prior had been stricken. The prosecutor stated that Case 47 " as the two counts of [section] 529 along with the prison prior." Without further discussion, the court added the one-year enhancement. The court imposed two years for each of the remaining felonies and ordered they run concurrent to the principal term. The court terminated probation as to the misdemeanors with no additional penalties.
Discussion
1. The Sentence Enhancement
There is no dispute that the plea agreement required the district attorney to request dismissal of one felony count in each case and both the prison priors alleged in Case 46. Defendant contends that the district attorney had also agreed to dismiss the single prison prior that was alleged in Case 47. The People respond that the record is unclear and urge us to remand the case to the trial court for clarification. We agree that a remand is warranted.
The Record
October 14, 1998 Clerk's Minutes: The October 14, 1998 change of plea hearing is memorialized on two separate forms. Plea conditions for Case 46 are listed as "No State Prison," "Jail Term of 9 mo t/b"
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