People v. Rathe CA1/5

Filed 11/2/22 P. v. Rathe CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Appellant, A164576 v. VINCENT RATHE, (Sonoma County Super. Ct. Nos. SCR-728578-1; Defendant and Respondent. SCR-743273-1; SCR 744040-1; SCR-744041-1)

Between 2019 and 2021, defendant Vincent Rathe (Defendant) was charged with a number of mostly-theft-related offenses in four felony cases.1 In December 2021, Defendant entered an open plea of no contest to the offenses charged in the four cases, as well as offenses in six misdemeanor cases. The Probation Department filed a presentence report, recommending that probation be denied and that Defendant “be committed to the Sonoma County Jail for the term of nine (9) years and eight (8) months with seven (7) years suspended, during which time the defendant shall be subject to

It is unnecessary for the purposes of the present appeal to detail the 1

charges and the underlying facts.

1

Mandatory Supervision by the Probation Department . . .” The sentence recommended by the Probation Department would have required Defendant to spend two years eight months in jail, minus credit for 337 days spent in custody, followed by a seven-year period of mandatory supervision. At the sentencing hearing in February 2022, rather than imposing the sentence recommended by the Probation Department, the trial court indicated its intent to impose a two-year eight-month term of “mandatory supervision” and “suspend[]” the remaining seven years of the sentence.2 The court told Defendant that if he returned to his “drug and stealing ways” he was “going to be serving seven years in our jail.” The prosecutor argued the court’s sentence was not authorized by Penal Code section 1170, subdivision (h).3 The trial court nevertheless proceeded to impose the sentence it had outlined, imposing a total term of nine years eight months, with two years eight months on mandatory supervision with the remaining seven years suspended. The People appealed on the ground that the sentence is unauthorized. We agree the sentence imposed by the trial court is unauthorized. “In 2011, the Legislature enacted the Realignment Act, creating section 1170, subdivision (h), and realigning housing for certain felony convictions from state prison to local custody. Subdivision (h)(5) of section 1170 created the ‘split sentence’ which allows a defendant to serve a realigned sentence