People v. Jones

Opinion

PUGLIA, P. J.

Defendant appeals from the judgment of the Shasta County Superior Court imposed after he admitted a probation violation following his conviction in Butte County for grand theft.

In January 1977, defendant, then age 17, pleaded guilty in Shasta County Superior Court to four counts of violating Vehicle Code section 10851 (unlawful driving or taking of a vehicle). He was placed on probation for 3 years and committed to the county jail for 210 days as a condition of probation. In 1978, while still on probation, defendant, by then 19 years old, pleaded guilty to grand theft and was sentenced to 2 years in state prison by the Butte County Superior Court. Thereafter the Shasta County probation officer charged defendant with violation of probation in that he was convicted of grand theft in Butte County.

Defendant contends his attorney misapprehended the applicable sentencing law and thus failed to give him reasonably competent repre

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sentation at the sentence hearing. At the hearing, counsel agreed with the recommendation of both the district attorney and the probation officer that defendant receive a consecutive sentence. Defendant asserts his attorney’s position was based upon the erroneous assumption the maximum sentence would be governed by the Uniform Determinate Sentencing Act, rather than the Indeterminate Sentence Law.

Since the Shasta County offenses for which defendant was placed on probation occurred prior to July 1, 1977, sentencing on these convictions was not directly controlled by the penalties prescribed by the Uniform Determinate Sentencing Act (Pen. Code, §§ 1170, subd. (a) (2), 1168, subd. (b)). Former Vehicle Code section 10851 provided for an indeterminate term of imprisonment in state prison for not less than one nor more than five years, and that is necessarily the term to which defendant was sentenced upon each count (Pen. Code, § 1168, subd. (b)). At the time defendant admitted the violation of probation, however, counsel and the trial court referred to the maximum period of incarceration within the context of the Determinate Sentencing Act as opposed to the potentially longer period under the Indeterminate Sentence Law. For example, the court advised the defendant, .probably the sentence will be to state prison and that it will be consecutive to any other and so you have up to the maximum of thirty-two months consecutive on these four counts,. . ..”