People v. Bozeman
| Decision Date | 02 February 1984 |
| Docket Number | Cr. 15829,C |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Steve A. BOZEMAN on Habeas Corpus. The PEOPLE, Plaintiff and Respondent, v. Steve Arnold BOZEMAN, Defendant and Appellant. r. 15299. |
John A. Howell, Salinas, for defendant and appellant.
John K. Van de Kamp, Atty. Gen. and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.
Steve A. Bozeman appeals the judgment entered on his guilty plea in case CRV 7972 (case 2). Bozeman also challenges, both in his appeal and by a petition for writ of habeas corpus, the combined sentence imposed in case 2 for his convictions in that case and in case CRN 7629 (case 1). We affirm the judgment in case 2 and deny the petition.
A jury in case 1 found Bozeman guilty of second degree burglary. (Pen.Code, §§ 459, 460, subd. 2.) 1 The court imposed a three-year upper term (§§ 18, 461, subd. 2) plus a one-year enhancement for a prior prison term (§ 667.5, subd. (b)), for a total sentence of four years. In case 2 Bozeman pleaded guilty to three counts of perjury (§ 118) and one count of second degree burglary.
Bozeman pleaded guilty in case 2 after his conviction in case 1 but before sentencing. The court and counsel in case 2 anticipated a four-year sentence would be imposed in case 1. With that in mind, defense counsel negotiated a six-year and eight-month cap on the combined sentence for both cases as part of Bozeman's plea bargain in case 2.
At the sentencing hearing in case 2 the court noted that, as expected, a four-year sentence had been imposed in case 1. The court then imposed separate four-year terms on all three perjury counts (§ 126), but stayed execution of sentence on two of the counts. (§ 654.) The court added an eight-month consecutive sentence representing one-third of the middle term for second degree burglary. (§§ 18, 461, subd. 2.) In total, Bozeman received a four-year and eight-month sentence in case 2. However, to comply with the plea bargain in that case, the court reduced the four-year sentence originally imposed in case 1 to one year and eight months, for a total combined sentence in the two cases of six years and four months. The court reduced the original four-year sentence by changing the three-year upper term imposed for second degree burglary to an eight-month one-third middle term to be served consecutively to the sentence imposed in case 2. At the request of the Department of Corrections, the court in case 2 entered an amended abstract of judgment reflecting the new combined sentence for both cases and properly credited Bozeman only for time he spent in custody before sentencing in case 1. (See § 2900.5, subd. (b).)
Appointed appellate counsel filed a brief setting forth the foregoing facts and proceedings. He presents no argument for reversal and asks us to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071. Our review disclosed one reasonably arguable appellate issue: is the combined sentence for both cases imposed by the court in case 2 authorized by the Penal Code? (See People v. Massengale (1970) 10 Cal.App.3d 689, 693, 89 Cal.Rptr. 237.)
After considering counsel's briefs (see People v. Wende, supra, 25 Cal.3d at p. 442, fn. 3, 158 Cal.Rptr. 839, 600 P.2d 1071), we have concluded the court in case 2 acted properly under section 1170.1, subdivision (a). As noted above, to comply with the plea bargain in case 2, the court modified the lawful sentence previously imposed by the court in case 1 for second degree burglary. As a general rule, a sentence lawfully imposed may not be modified once a defendant is committed and execution of his sentence has begun. (People v. Roe (1983) 148 Cal.App.3d 112, 116, 195 Cal.Rptr. 802; People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627.) The exceptions to the rule allowing corrections of clerical or judicial errors do not apply here. (See ibid.)
However, section 1170.1, subdivision (a) represents a statutory exception to the general rule and does apply here. That section provides in part:
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