Filed 11/19/20 In re Bertram CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re TIMOTHY K. BERTRAM

on Habeas Corpus. G05 9404

(Super. Ct. No. 15HF0067 )

O P I N I O N

Original proceedings; petition for a writ of habeas corpus

. Petition granted

with directions.

Petitioner Timothy K. Bertram , in pro

. per. Todd L. Spitzer Attorney General, and George A . Tur ner , Deputy Attorney
General for Respondent.

* * *2

THE COURT:*

In December of 2019, p etitioner Timothy K. Bertram pled guilty to 13 felony counts of second

- degree burglary in Orange County Superior Court c ase No.

15HF0067 . (Pen. Code § §459 , 460, subd. (b) )

. 1

Pursuant to the plea agreement t he court struck a strike prior and six prison priors for purposes of sentencing only. The court sentenced petitioner to three years on

c ount 1, with concurrent sentences on the rem aining counts, with credit for 178 days

served. The court also ordered that petitioner’s sentence be served at ‘“ any penal
institution, ” ’ concurrent ly with two other cases previously imposed by Los Angeles County , and for which petitioner was currently se rving 12 years in state prison.

Despite the court’s ruling, a mistake was made in the a bstract of j udgment

. This mistake incorrectly state s that petitioner was sentenced to c ounty j ail pursuant to

section 1170

, s ubdivision (h). According to petitioner , t his mistake has resulted in a

“ time server hold ” being placed against him . This hold could operate to send him back to Orange County j ail after he is released from prison, despite the terms of his sentence which mandates that he is to serve a prison te rm only.

Section 669 s ubdivision (d)

, provides in effect , that when a court imposes a concurrent term of imprisonment and imprisonment for one of the crimes is required to be served in state prison, the term for all crimes shall be served in state prison, even if the term for any other offense specifies imprisonment in a county jail pursuant to section

1170 s ubdivision (h). Here, t he court acknowledged at petitioner’s sentencing hearing

that this case

, “ [I] t ’s not 1170(h).”

The Attorney General concedes that there exists an error in the a bstract of j udgment

. The Attorney General does not oppose the grantin g of relief on the foregoing

* Before, O’Leary

, P.J., Ikola , J., and Thompson, J.

1 All further statutory references are to the Penal Code.3

claim and has waived any issuance of an order to show cause. ( People v. Romero (1994)
8 Cal.4th 728, 740, fn.7.)

A ccordingly, t h e superior court is directed to amend the abstract of judgment to delete that part of the abstract indicating that petitioner is sentenced to county jail per s ection 1170 s ubdivision (h)

, and to send a certified copy of the amended

abstra ct to the California Department of Corrections and Rehabi l itation. This decision

shall be final as to this court 10 days after its filing. (Cal.Rules of Court, rule
8.387(b)(3)(A).)