P. v. Ragus

Filed 11/29/05 P. v. Ragus CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. CETKO IVAN RAGUS, Defendant and Appellant.

2d Crim. No. B178947 (Super. Ct. No. 1125170) (Santa Barbara County)

Cetko Ivan Ragus pled no contest to petty theft with a prior. (Pen. Code, § 666.)^[1] In exchange, he agreed to a three-year prison sentence. The abstract of judgment reflects that one of the three years was imposed for a prior prison term. (§ 667.5, subd. (b).) He claims the prior prison term enhancement must be struck because it was neither admitted nor proved. We affirm the judgment.

FACTS

On February 17, 2004, Ragus pled no contest to one count of petty theft and admitted to three prior theft related convictions. In exchange, he agreed to a three-year prison sentence. Execution of the sentence was suspended and Ragus was granted probation for five years. The plea agreement did not specify the basis on which the three-year sentence was calculated.

On October 4, 2004, Ragus was found to be in violation of probation. The trial court sentenced him to three years in state prison. The prosecutor argued the sentence should be calculated as the three-year upper term for petty theft with a prior. Defense counsel argued the sentence should be calculated as the two-year middle term plus a one-year enhancement. The abstract of judgment specified the sentence consisted of the two-year middle term plus a one-year enhancement for a prior prison term (§ 667.5, subd. (b)).

DISCUSSION

Ragus contends his sentence as reflected in the minute order is unlawful because the prior prison term enhancement was neither admitted nor proved.

But where a sentence is imposed and execution is suspended pending probation, the time for appealing the sentence runs from its initial imposition, not from the time probation is revoked. (People v. Amons (2005) 125 Cal.App.4th 855, 868-869.) The time for appealing the sentence may expire during the probation period. (Id. at p. 869.)

Here the sentence was initially imposed in February of 2004. The time for appeal had expired by the time probation was revoked in October of 2004. (See Cal. Rules of Court, rule 30.1 [notice of appeal must be filed within 60 days of entry of judgment].)

Ragus argues he is not appealing the three-year sentence to which he agreed. He is only appealing the imposition of the enhancement. But the enhancement was imposed as part of the three-year sentence. No clever application of semantics can help Ragus avoid that he is challenging one year of the three-year sentence.

In any event, the three-year sentence could have been imposed as the three-year upper term for petty theft with a prior. (§§ 18, 666.) Ragus points to no prejudice that results from imposing the three years as a two-year middle term plus a one-year prior prison term enhancement. In fact, his counsel argued that is how it should be imposed. Having accepted the benefit of the plea bargain, Ragus will not be heard to complain that the trial court imposed the sentence to which he agreed. (See People v. Jones (1989) 210 Cal.App.3d 124, 136 [defendant estopped from challenging imposition of a § 667, subd. (a) enhancement].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

James F. Iwasko, Judge

Superior Court County of Santa Barbara

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.