People v. Green CA3

Filed 4/21/15 P. v. Green CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C074332

Plaintiff and Respondent, (Super. Ct. Nos. 10F08426, 11F04884) v.

BRANDON GREEN,

Defendant and Appellant.

Defendant Brandon Green comes before us following a revocation of his probation in two cases. On January 5, 2011, in case No. 10F08426, defendant pleaded no contest to possession of marijuana for the purpose of sale (Health & Saf. Code, § 11359);1 the trial

1 The written change of plea form and the minute order both indicate defendant entered a plea of no contest, but at the oral change of plea in open court defendant stated he was pleading guilty to the charge. As the written plea agreement reflects the parties’ intent

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court suspended imposition of judgment and sentencing, and ordered defendant placed on formal probation for five years. Then, on August 22, 2011, in case No. 11F04884, defendant pleaded no contest to burglary (Pen. Code, § 459);2 again, the trial court suspended imposition of judgment and sentencing, and ordered defendant placed on formal probation for five years. Thereafter, on June 20, 2013, the trial court found defendant violated his probation in both cases when he robbed a donut shop and resisted arrest (§§ 148, subd. (a)(1), 211) on May 30, 2012. The court revoked defendant’s probation and sentenced him to the upper term of six years in state prison for case No. 11F04884 (burglary) and a consecutive eight months (one-third of the middle term) for case No. 10F08426 (possession for sale). The trial court also imposed restitution fines of $200 each for case Nos. 10F08426 and 11F04884 pursuant to section 1202.4. On appeal, defendant contends he was denied effective assistance of counsel in the 2013 sentencing proceeding because counsel failed to object when the trial court relied on impermissible factors in sentencing him to the upper term. He also contends the imposed restitution fines were erroneously duplicative of previously imposed fines. Respondent agrees with defendant as to both contentions, and so do we. Accordingly, we remand for resentencing. DISCUSSION I Imposition of Upper Term Defendant contends the trial court abused its discretion in sentencing him to the upper term in case No. 11F04884 based on its erroneous consideration of (1) defendant’s