People v. Curiel CA3

Filed 8/6/14 P. v. Curiel CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C074439

Plaintiff and Respondent, (Super. Ct. No. NCR75375, NCR86172) v.

PABLO LOPEZ CURIEL,

Defendant and Appellant.

In November 2008 defendant Pablo Lopez Curiel pleaded no contest to conspiracy to sell or transport marijuana (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11360, subd. (a)) in case No. NCR75375. Pursuant to the plea agreement, the trial court imposed a three-year state prison term, suspended execution of sentence, and placed defendant on five years’ formal probation. In April 2013 defendant entered into a negotiated disposition where he pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378), maintaining a place for the sale of methamphetamine (Health & Saf. Code, § 11366), and

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unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)) in case No. NCR86172, and admitted violating his probation in case No. NCR75375. There were two sentencing hearings: the trial court imposed a five-year term at the first hearing and clarified what it meant at the second hearing, where it imposed a five-year term again. On appeal, defendant contends the trial court erred in failing to pronounce orally the sentence for each count in case No. NCR86172. In his reply brief, defendant contends the trial court imposed an unauthorized sentence at the second sentencing hearing. We shall vacate the sentence, remand for sentencing, and otherwise affirm the judgment. BACKGROUND We omit the facts of defendant’s crimes as they are unnecessary to resolve this appeal. The change of plea form in case No. NCR86172 states defendant may receive a maximum sentence of three years for the possession of methamphetamine for sale count and maximum eight-month terms for the maintaining a place for sale of methamphetamine and possession of ammunition counts. The form does not indicate a stipulated sentence as part of the plea. The trial court informed defendant at the plea colloquy that he was subject to a maximum term of three years for the possession for sale count and would receive eight- month terms for each of the other two counts. A stipulated term was not mentioned at the hearing. The probation report in case No. NCR86172 states “[t]here was a plea agreement of four years state prison or five years probation and up to three hundred sixty-five days jail.” At the June 11, 2013, sentencing hearing, the prosecutor informed the trial court that the statement in the probation report regarding a possible stipulated sentence was