People v. Sarabia CA5

Filed 12/1/15 P. v. Sarabia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068881 Plaintiff and Respondent, (Fresno Super. Ct. No. F13902654) v.

GERARDO LEDESMA SARABIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. John N. Gallagher, Jr., Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Poochigian, J.

On March 26, 2013, defendant Gerardo Ledesma Sarabia was convicted by no contest plea of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); a felony) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); a misdemeanor). At sentencing, the trial court suspended imposition of sentence and granted him three years’ formal probation on the condition that he serve 76 days in county jail. The court granted 16 days of credit and ordered him to serve the remaining 60 days in the Adult Offender Work Program. On September 24, 2013, defendant admitted violating probation by failing to complete the Adult Offender Work Program. The court revoked probation, then reinstated probation on the condition that defendant serve 76 days in county jail. The court granted 30 days of credit and ordered defendant to serve the remaining 46 days in the Adult Offender Work Program. On December 20, 2013, defendant again admitted violating probation by failing to appear for three drug tests. He contends on appeal that at this probation violation hearing, the court sentenced him, in response to his request, to a misdemeanor sentence of 364 days in jail with no probation. He asks that we direct the trial court to clarify the record to reflect this sentence. The People argue that remand to the trial court is necessary for clarification because it is unclear from the record whether the court intended to impose a misdemeanor sentence or continue defendant on felony probation that would terminate at the end of his jail term. We vacate the sentence and remand for clarification and resentencing. BACKGROUND The following occurred at the probation violation hearing on December 20, 2013: