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Name: People v. Martinez
Case #: F068719
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/30/2015

When a trial court terminates probation, it must order the previously suspended conviction into effect even when that sentence was a subordinate term imposed consecutively to a principal term that no longer exists. After Martinez violated probation in two separate cases, the trial court imposed an upper term for case one (the principal term) and a consecutive term of eight months (one-third the midterm of two years) in case two (the subordinate term). The trial court suspended execution of the sentence and reinstated Martinez on probation in both cases. He successfully completed probation in the first case. Thereafter, Martinez violated probation in the second case. Instead of executing the previously suspended eight-month term, the trial court imposed an upper term of three years. Martinez appealed. Held: Sentence vacated and case remanded. When probation is revoked, a trial court may not modify a previously imposed but suspended sentence. (People v. Howard (1997) 16 Cal.4th 1081, 1084; see also Pen. Code, § 1203.2, subd. (c); California Rules of Court, rule 4.435(b).) However, there is an exception to this rule if the original sentence was unauthorized. In this situation the sentence must be vacated and a proper sentence imposed. After analyzing relevant case law, the Court of Appeal rejected the Attorney General’s argument that Martinez’s sentence fell under this exception. Although the eight-month sentence would have been unauthorized if it had been imposed in the first instance when the suspension was lifted, it was lawful when it was imposed and was a final judgment when Martinez’s probation was revoked in his second case. Martinez was not sentenced again when the trial court lifted the suspension. Under these circumstances, the trial court did not have jurisdiction to do anything aside from ordering the previously suspended eight-month sentence executed.