People v. Jenkins CA2/5 ( 2021 )

Filed 6/15/21 P. v. Jenkins CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B307818
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA077978)
v.
ANTOINETTE GWENEA JENKINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Denise McLaughlin-Bennett, Judge. Affirmed
as modified.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, John Yang, Deputy Attorney General,
for Plaintiff and Respondent.
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Defendant and appellant Antoinette Jenkins (defendant)
pled no contest to theft of identifying information in exchange for
a two-year sentence. At sentencing, defense counsel told the
court that defendant must serve her sentence in state prison (not
county jail) because counsel mistakenly believed she had a prior
“strike” conviction. The trial court accordingly sentenced
defendant to serve her custodial term in state prison, and, as the
Attorney General now concedes, that was error that needs
correcting.
According to a report prepared by the probation
department, defendant confessed to stealing mail when she was
“high” and “thought [she] was the mailman.” The People charged
defendant with multiple counts of identifying information theft
(Pen. Code,1 § 530.5, subd. (c)(3)), a felony. The charging
document further alleged defendant had sustained a prior serious
or violent felony conviction: assault with force likely to produce
great bodily injury (§ 245, subd. (a)(4)).
Pursuant to an agreement with the People, defendant
agreed to plead guilty to one count of identifying information
theft in exchange for a two-year sentence. At a change of plea
and sentencing hearing, there was some initial confusion as to
whether defendant had a prior conviction that qualified as a
serious or violent felony and the parties eventually agreed
(incorrectly, as it turns out) that she did. Based on that
understanding, defense counsel believed the plea agreement
could stand only if defendant’s sentence were served in state
1
Undesignated statutory references that follow are to the
Penal Code.
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prison, not county jail, and the trial court accepted that
proposition, sentencing defendant to two years in state prison.
Section 530.5 provides for punishment in the form of a fine,
imprisonment in a county jail, or imprisonment pursuant to
subdivision (h) of section 1170. (§ 530.5, subd. (c)(3).) Under
section 1170, subdivision (h), an offender must serve a qualifying
determinate sentence in state prison if the offender has a prior
serious or violent felony conviction. (§ 1170, subd. (h)(2); see also
§§ 667.5, 1192.7.)
The commitment to state prison here is an unauthorized
sentence because assault with force likely to produce great bodily
injury is not a serious or violent felony (see, e.g., People v. Belloso
(2019) 42 Cal.App.5th 647, 651, fn. 5), which means, under
section 1170, subdivision (h), that the condition that defendant
serve her sentence in state prison could not lawfully be imposed
under any circumstance in this case. As an unauthorized term of
a sentence, the state prison commitment can be corrected at any
time and does not affect the validity of the plea agreement
because it was not a term thereof. (People v. Vizcarra (2015) 236
Cal.App.4th 422, 432; see also People v. McClellan (1993) 6
Cal.4th 367, 379; People v. Avila (1994) 24 Cal.App.4th 1455,
1461.)
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DISPOSITION
The judgment is modified to designate county jail, not state
prison, as the place for service of defendant’s sentence. The trial
court shall prepare an amended abstract of judgment so
reflecting and deliver a copy to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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