Filed 10/7/20 P. v. Palacio CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

RENE BRYANT PALACIO,

Defendant and Appellant.

B301834

(Los Angeles County

Super. Ct. Nos. 

BA452318, BA462599, & 

BA466464)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David C. Brougham, Judge. Affirmed as 

modified.

 James Koester, 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, Stephanie C. Brenan, Supervising 

Deputy Attorney General, and Toni R. Johns Estaville, Deputy 

Attorney General, for Plaintiff and Respondent.

____________________
2

Appellant Rene Bryant Palacio and the prosecution agree 

one of Palacio’s three sentences is incorrect. They correctly say 

this sentence must correspond with the original sentence the 

superior court imposed before revoking Palacio’s probation. We 

agree and modify the judgment. Statutory references are to the 

Penal Code.

I

Four separate cases brought Palacio before the trial courts. 

In 2017, Palacio pleaded no contest to receiving stolen 

property in violation of section 496, subdivision (a). The case 

number was BA452318. 

In 2018, Palacio pleaded no contest to vandalism in 

violation of section 594, subdivision (a). This case was BA462599. 

Also in 2018, Palacio pleaded guilty to second degree 

commercial burglary in violation of section 459. This case was 

BA466464. 

In the first two cases, the superior court suspended 

imposition of sentencing. In the third case, the court sentenced 

Palacio to the low term of 16 months in county jail but suspended 

execution of the sentence. The court put Palacio on probation in 

all three cases. 

In 2019, the People brought a fourth case against Palacio—

case No. KA120344—again for burglary. The court held the 

preliminary hearing for this case together with the probation 

violation hearing for Palacio’s other cases. 

The court found Palacio in violation of his probation and 

terminated his probation in all three cases. 

The court sentenced Palacio to the upper term of three 

years in each of his three probation cases. 
3

In each of the three cases, the court selected the upper term 

of three years as the base term. There were no enhancements. 

The court did not use the words “base term,” as there were no 

enhancements and the sentences were to be served concurrently. 

The court then dismissed the fourth case against Palacio on 

the prosecution’s motion. 

Palacio appealed, arguing one of his three-year sentences is 

unlawful. The one sentence he attacks is the sentence in 

BA466464. 

The People filed a response agreeing resentencing is 

warranted as to the one case of BA466464. 

II

The parties are correct. The court erred in imposing a 

three-year sentence in Palacio’s third case, BA466464.

When a court grants probation without imposing a sentence 

and later revokes the probation, the court may select any 

available sentencing option. (People v. Howard (1997) 16 Cal.4th 

1081, 1084, 1987 (Howard).) 

These sentencing options are gone, however, when a court 

imposes a sentence, suspends its execution, and grants the 

defendant probation. (See Howard, supra, 16 Cal.4th at p. 1084.) 

If the court later revokes probation, it must order that exact 

sentence into effect. (Id. at p. 1088; see also Cal. Rules of Court, 

rule 4.435(b)(2) [where execution of sentence was suspended and 

the sentencing judge later determines the defendant will be 

jailed, “the judge must order that the judgment previously 

pronounced be in full force and effect . . .”].) Trial courts may not 

modify a previously imposed and suspended sentence because 

judgment has been entered and the terms of the sentence already 
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have been set. (People v. Scott (2014) 58 Cal.4th 1415, 1422, 

1424.)

In BA466464, the original sentencing judge set Palacio’s 

sentence at 16 months and suspended execution of this sentence 

in 2018. After revoking Palacio’s probation in 2019, the new 

sentencing judge should have executed this 16-month sentence. 

Thus, Palacio’s proper sentence is 16 months on BA466464, 

three years on BA452318, and three years on BA462599. These 

three terms run concurrently.

III

Palacio also asks that we order the abstract of judgment 

corrected to reflect that he is serving a three-year high term in 

case No. BA462599, not the midterm. We do so. (See People v. 

Mitchell (2001) 26 Cal.4th 181, 185 [important to correct errors in 

abstracts of judgments].) 

DISPOSITION

The judgment is modified. We direct the sentencing court 

to (1) amend the sentencing minute order in BA466464 and the 

abstract of judgment to reflect a 16-month sentence (the low 

term) in this case; (2) correct the abstract of judgment to reflect 

imposition of the upper (“U”) term in BA462599; and (3) forward 

a certified copy of the corrected abstract of judgment to the 

Department of Corrections and Rehabilitation. As modified, the 

judgment is affirmed. 

WILEY, J.

We concur: 

BIGELOW, P. J. GRIMES, J.