People v. Belche

Filed 8/21/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C088829

v. (Super. Ct. No. 62-149962)

STEPHEN ROBERT BELCHE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Placer County, Michael W. Jones, Judge. Reversed with directions.

Alexandr Satanovsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ross K. Naughton, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Stephen Robert Belche admitted violating probation in exchange for an agreed-upon sentence of three years on the original conviction. The trial court approved the admission agreement, formally revoked defendant’s probation, and ordered that probation would not be reinstated. While defendant was awaiting sentencing on the original conviction, he exposed himself to a jail nurse. The probation department filed a new petition to revoke probation based on the indecent exposure. The trial court found the new allegation true, again revoked defendant’s probation, and sentenced him to six years in state prison.

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Defendant now contends (1) the trial court did not have jurisdiction to find he violated probation based on his indecent exposure after the trial court formally revoked his probation and ordered that it not be reinstated, and (2) the trial court erred in sentencing him to six years in state prison because he only agreed to a sentence of three years when he admitted the probation violation. We conclude (1) the trial court did not have jurisdiction to find defendant violated probation based on his indecent exposure because defendant’s probation had been formally revoked and not reinstated, terminating probation, and (2) we must vacate the six-year prison term and remand for the trial court either to impose a three-year term or allow defendant to withdraw his admission made under the agreement.1 We will reverse the order finding defendant violated probation by exposing himself to a nurse, vacate the sentence, and remand for the trial court to exercise its discretion either to impose a three-year term or allow defendant to withdraw his admission. BACKGROUND In 2017, defendant pleaded no contest to committing a lewd act on a child (Pen. Code, § 288, subd. (a))2 and the trial court placed him on probation with 364 days of county jail time. A first petition to revoke probation was subsequently filed and