People v. Goodwin CA5

Filed 10/28/14 P. v. Goodwin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F066546 Plaintiff and Respondent, (Super. Ct. No. MCR042196A) v.

HERBERT DEON GOODWIN, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Gomes, Acting P.J., Detjen, J., and Franson, J.

The trial court corrected a sentencing error - changing appellant Herbert Deon Goodwin’s unauthorized grant of probation to the authorized midterm of six years. Goodwin appeals the more severe judgment. We affirm. FACTUAL AND PROCEDURAL HISTORY On May 11, 2012, a jury found Goodwin guilty of pimping and prostituting a person under the age of 16 years of age (Pen. Code, § 266h, subd. (b)(2))1. On August 9, 2012, the trial court suspended imposition of sentence and placed Goodwin on probation for three years and ordered him to spend 90 days in jail. Three months later, on November 6, 2012, Goodwin’s probation officer alleged that Goodwin had violated his probation. The probation officer also noted that, after probation was granted in August, the district attorney’s office informed the probation department that Goodwin’s offense made him ineligible for probation pursuant to section 1203.065. A hearing was set for November 30, 2012, to consider the illegality of Goodwin’s probation sentence. At the hearing, the prosecutor admitted that, when he became aware that probation was not available in this case, he decided to “let it lie” because it was Goodwin’s first felony and he thought he would “give him the benefit of the doubt and see how he did on probation.” The trial court concluded that its earlier grant of probation was illegal and that Goodwin was ineligible for probation. The trial court referred the matter to probation for a report and recommendation and set a resentencing hearing for December 4, 2012. The resentencing hearing was continued three times due to Goodwin’s counsel’s request for more time and Goodwin’s Marsden2 motion and subsequent request to represent himself, which he later vacated. At resentencing on January 11, 2013,