People v. Hinkle CA1/1

Filed 9/21/16 P. v. Hinkle CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A146205 v. AMANDA LEATRICE HINKLE, (San Francisco County Super. Ct. No. 223838) Defendant and Appellant.

Appellant Amanda Leatrice Hinkle was convicted of first degree residential burglary and misdemeanor receiving stolen property. She argues, and respondent concedes, that the trial court should have stayed the sentence she received on one of her two convictions. We have identified additional potential errors with the sentencing order and remand to the trial court to enter an authorized sentence. I. FACTUAL AND PROCEDURAL BACKGROUND On the morning of March 9, 2015, Hinkle entered an apartment on Golden Gate Avenue in San Francisco, took several items, then left after one of the apartment’s residents woke up. Police found Hinkle nearby shortly thereafter with several items that had been taken from the apartment. A jury convicted her of felony first degree residential burglary (Pen. Code, § 459—count 1)1 and misdemeanor receiving stolen property

1 All statutory references are to the Penal Code.

1

(§ 496, subd. (a)—count 2), and the trial court found true an allegation that another person was present in the residence during the burglary (§ 667.5, subd. (c)(21)). Hinkle filed a motion for new trial in which she argued that she could not be convicted both of first degree burglary and of receiving or buying stolen property because the two crimes involved the same property. At the hearing on the motion, the prosecutor acknowledged that the offenses merged for purposes of section 6542 but argued that such a merger meant that while Hinkle could not be punished for both offenses arising out the same course of conduct, she could be convicted of both of them. The trial court denied the motion to dismiss, then turned to sentencing. After hearing arguments from the prosecutor and Hinkle’s attorney about sentencing options, the trial court purported to sentence Hinkle by imposing a sentence on one count and placing her on probation on the other count: “I’m going to start with Count 2. [¶] The judgment and sentence of this Court to Count 2 of Ms. Hinkle’s violation of Penal Code Section 496 Subsection (a) is one year in the county jail. [¶] As to Count 1, a violation of Penal Code Section 459 in the first degree, as a felony, the judgment and sentence will be as follows: [¶] Ms. Hinkle is sentenced to two years in State Prison which is the mitigated term. However, the execution of that sentence will be suspended. She will be placed on adult probation for a period of three years under the following terms and conditions: [¶] She is sentenced to . . . 180 days in county jail. [¶] . . . .[¶] And she gets custody credit of 180 days, for a total 360 days.” After warning Hinkle that she would be sent to prison if she violated the terms and conditions of her probation, the court also stated, “And before I forget, Counts 1 and 2 will be concurrent” under “664” (most likely a reference to section 669, regarding concurrent and consecutive sentences, as section 664 relates to punishment for attempted crimes, which was not an issue here).