People v. Colado

Opinion

NARES, J.

Ernesto Diaz Colado appeals following revocation of his probation in case Nos. CR127310 and CR130618. We affirm.

Background

The facts are undisputed. Colado was, in case No. CR127310, convicted of possessing heroin for sale. While on probation from that offense he was,

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in case No. CR130618, again convicted of sale of heroin, this time while armed with a firearm.

Although sentenced to the five-year upper term with a four-year weapons enhancement in No. CR130618, Colado received probation again in those matters. In case No. CR139920 Colado was again convicted of drug and firearms offenses. He was sentenced in No. CR139920, and his probation was revoked in Nos. CR127310 and CR130618.

The three drug cases were ordered to run concurrently. The nine-year term in No. CR130618 is the longest sentence. Colado now asserts the revoking judge had the power at the time of revocation to modify the earlier imposed sentence. We disagree, and affirm the judgment.

Discussion

Colado asserts the sentencing judge had authority to modify the previously imposed but stayed, and unappealed, sentence in No. CR130618. In sentencing in No. CR139920, the judge said, “I frankly think I would have given the mid term in this matter [No. CR139920], which we can discuss, but in light of the 9 year suspended sentence, which I feel compelled to impose on the underlying matter [No. CR130618], I think it would be academic anyway.”

It would indeed have been academic. Colado did not appeal from the nine-year sentence imposed but not executed in No. CR130618. His subsequent conviction of sale of cocaine base necessitated the revocation of probation in No. CR130618, and because his earlier imposed sentence had long since become final, as was pointed out in

People

v.

Chagolla