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Name: In re Renfrow
Case #: C055564
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/16/2008
Summary

An unauthorized sentence is subject to judicial correction, even if a more serious sentence results, regardless of when it comes to the attention of the trial or reviewing court. By his plea, appellant was convicted of assault and a great-bodily-injury enhancement, and granted probation. On a subsequent probation violation, the court sentenced him to three years for the assault, suspended execution of sentence, and reinstated him on probation. The court did not address the enhancement. On a second violation, the court accepted the prosecutor’s proposed resolution of two years for the assault and three years for the enhancement. The habeas court granted appellant’s petition alleging that under People v. Howard (1997) 16 Cal.4th 1081, the five-year term was an unlawful increase over the three years imposed at the first violation hearing. The appellate court reversed the habeas court, ruling that Howard applied only to an authorized sentence and that by failing to strike the enhancement as required by Penal Code section 1385, the trial court imposed an unauthorized sentence at the first violation hearing which was subject to judicial correction at the final sentencing hearing.