People v. Ruiz

Opinion

DANIELSON, Acting P. J.

The People appeal from the imposition of an unlawful sentence (Pen. Code, § 1238, subd. (a)(10)).

We reverse the sentence and remand the case with directions.

Factual and Procedural Statement

In a one count information Gabriel Robles Ruiz, also known as Gabriel Ruiz Robles (defendant), was charged with possession of a controlled

[1253]

substance (cocaine) for sale, in violation of Health and Safety Code section 11351.

1

It was further alleged, inter alia, that the substance exceeded 100 pounds by weight within the meaning of section 11370.4, subdivision (a).

On November 6, 1990, a preliminary hearing was held.

On November 13, 1990 defendant pleaded not guilty and denied the special allegations.

On March 8, 1991, defense counsel indicated that defendant was willing to accept the offer of the court made at the prior appearance.

2

In response the People argued the minimum sentence to be imposed “would be 17 years in that the People have alleged and at the preliminary hearing had proved up that there was

[sic]

63 kilos of cocaine involved or actually 138 pounds, which would be over a hundred pounds, meaning the enhancement is 15 years.”

Addressing defendant directly the court stated: “I’ve indicated to your attorney if you enter a plea of guilty, I’m going to sentence you to the high term of four years plus an additional five years for the quantity enhancement for a total state prison sentence of nine years. I’m going to do this exercising my discretion under [section] 11370.4, [subdivision] (e).”

The court announced: “I find the following factors in mitigation to support the court’s exercise of discretion: The fact that the defendant had no prior record, that he expressed a willingness to plead at an early stage, he was cooperative with the police, and his role in this exercise was not as the entrepreneur, but as the person holding the narcotics. He is guilty of the offense as an aider and abettor. However, he was not the moving party.”