Can You Challenge an Increased Sentence in California

When a prison sentence is imposed but execution of the sentence is suspended and a defendant is placed on probation, the trial judge must order the original sentence into full force and effect if probation is revoked. (Pen. Code, 1203.2; Cal. Rules of Court, rule 4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1089 (Howard).) In People v. Howard (1997) 16 Cal.4th 1081, the California Supreme Court explained: "On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect." (Howard, supra, 16 Cal.4th at p. 1088.) "If the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage." (Id. at p. 1095.) In People v. Ramirez (2008) 159 Cal.App.4th 1412, the defendant attempted to challenge an increased sentence that was imposed in 2004 as part of a plea agreement that allowed him to remain on probation. However, he waited to make that challenge until 2006, when the court terminated his probation based on a new violation, and ordered him to serve the prison term that had been imposed but suspended in 2004. The Ramirez court found that the defendant was precluded from seeking relief because he had failed to raise this sentencing error in a timely appeal from the original imposition of sentence in 2004. The Ramirez court also found that defendant had agreed "to increase his suspended sentence by one year, in exchange for which he . . . received the benefit of being reinstated on probation and released from custody. Having accepted the benefits of his plea, he should not now be able to better the bargain by scaling back the increased sentence that was a fundamental component of the plea deal." (Ramirez, supra, 159 Cal.App.4th at p. 1428.)