Opinion
E080143
02-07-2024
THE PEOPLE, Plaintiff and Respondent, v. JIANHUA CHANG, Defendant and Appellant.
Bruce L. Kotler, by appointment of the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia D. Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF2200033. John D. Molloy, Judge. Affirmed.
Bruce L. Kotler, by appointment of the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Ksenia D. Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FIELDS J.
INTRODUCTION
Defendant and appellant Jianhua Chang appeals from a trial court's order declining to reinstate him on probation and sentencing him to six years in state prison. He contends the court committed reversible error by revoking his probation and sentencing him without ordering a probation report. We affirm.
PROCEDURAL BACKGROUND
On January 4, 2022, the Riverside County District Attorney's Office filed a complaint charging defendant with infliction of corporal injury on a spouse (Pen. Code,§ 273.5, subd. (a); count 1), criminal threats (§ 422; count 2), and dissuading a victim or witness (§ 136.1, subd. (b)(2); count 3). The complaint further alleged that, as to count 1, defendant personally inflicted great bodily injury (GBI). (§ 12022.7, subd. (e), and § 1192.7, subd. (c)(8).)
All further statutory references will be to the Penal Code, unless otherwise indicated.
On March 9, 2022, pursuant to a plea agreement, defendant pled guilty to count 1 and admitted the GBI enhancement. The plea agreement stated that the maximum possible custody commitment was nine years. Defendant had the assistance of a Mandarin interpreter, and the court found defendant freely and voluntarily entered the plea and admission, and knowingly and intelligently waived his rights. As to the factual basis for the plea, defendant admitted doing what was alleged in the complaint. The court then explained he had the right to have the probation department prepare a sentencing report. Defendant expressly waived the report and then agreed to "put the sentencing over" until April 5, 2022.
On April 5, 2022, pursuant to the plea agreement, the court suspended the proceedings for the purpose of granting defendant 36 months of formal probation, under specified terms, including that he serve 364 days in county jail and not have any direct or indirect contact with his wife and daughter (the victims). The court also issued a 10-year criminal protective order, prohibiting him from having any contact with, or coming within 100 yards of, the victims. The order specified that only an attorney could contact the victims on his behalf. The court dismissed the remaining allegations.
On July 1, 2022, the People filed a petition alleging that defendant had violated the terms of his probation. The trial court revoked defendant's probation and set the matter for hearing.
The court held a probation revocation hearing on September 7, 2022. Defendant's daughter and wife testified that, on June 29, they heard someone kicking and banging on the front door of the house and heard defendant calling the wife's name. The daughter decided to call the police because she thought defendant had come back to kill her and her mother.
Defendant testified on his own behalf. He said he was released from custody on June 29, 2022, and he went to the family residence to retrieve his belongings, since he did not have any money upon his release from jail. He said that he was not sure if his wife and daughter were home, and that he did not remember if the criminal protective order was explained to him. On cross-examination, defendant confirmed that, even though he was uncertain as to whether his wife and daughter were home, he decided to go to the house. He said he was wearing pajamas and did not have a house key. When asked how he expected to get in the house, he said, "I would just get there and I will call them out so this way I would just simply retrieve my stuff and I can leave from there.... If I see them inside the house, I'm going to call them out to get my stuff. And if they are not at home, my only choice is to just wait ...." Defendant explained that he assumed his wife or daughter prepared his belongings and left them in the car or garage. However, his belongings were not outside, so he knocked on the door because he was not sure where they were. He said the car his wife typically drove was in the driveway. Defendant confirmed that when he knocked on the door, he called out his wife's name.
The court found the evidence was overwhelming that defendant went to the family home knowing someone might be there, and the evidence showed that he, at the very least, attempted to contact the two protected people. Thus, he was clearly in violation of his probation terms and the protective order. The court remarked that defendant "ran a grave risk of contacting the protected people" but went to the family home anyway because "he felt his personal needs were more important."
The court proceeded to sentencing and asked if the parties wanted it to do the sentencing or have the matter sent back to the judge who took the plea. The court left it entirely up to the parties and said it would ask for sentencing briefs and set a hearing if they wanted to keep the matter in the present court. The parties agreed to submit sentencing briefs, and the court set the hearing.
The People submitted a sentencing brief stating that defendant had no prior criminal history and explaining the underlying facts of the case, as follows: On December 31, 2021, defendant flew into a rage, yelled at his wife and daughter about how unhappy he was in his marriage, and blamed his wife for spending money on frivolous things. He then struck his wife on the top of her head three times with a closed fist, causing her to fall to the ground. When his daughter attempted to intervene, defendant turned toward her and attempted to hit her as well, but he missed. His daughter called 911, and when the police arrived, they detained defendant and discovered his wife lying on the bedroom floor, apparently unconscious. An officer tried to shake her awake, but she was unresponsive. Defendant, who was detained in handcuffs on the couch, called out to his daughter and threatened to kill her for involving the police. The daughter informed the police that there had been several previous unreported incidents of domestic violence by defendant against his wife. The People argued that defendant had already been given a chance at probation, and he violated his terms within minutes of being released from custody. Since he clearly had no regard for the court's orders and there were no unusual circumstances to warrant a second grant of probation, the People requested the court order the upper term of four years on count 1, plus the upper term of five years on the GBI enhancement. The People enumerated several aggravating factors, including that the victims were particularly vulnerable, defendant took advantage of his position of trust, and he was on probation when he violated the protective order.
The defense sentencing brief also noted defendant had no prior criminal history, and asserted that, pursuant to section 1203, subdivision (e)(3), if the court determined there were circumstances in mitigation of the punishment prescribed by law, or that the ends of justice would be served by granting probation, it may place a person on probation. Defense counsel argued there were multiple unusual circumstances, including that there was no guarantee defendant understood the no contact order, given the language barrier; he was released from custody with no money, clothes, or shelter, and he went to the house just to grab his belongings out of necessity; and he had no prior criminal record. Defense counsel asked the court to place defendant on probation again, or in the alternative, sentence him to the low term of two years on count 1 and three years on the GBI enhancement.
The court held a sentencing hearing on October 26, 2022. The People submitted on their brief and read victim impact statements in court. Defense counsel submitted as well and reiterated the points made in his brief. The court asked if defense counsel had anything further. Defense counsel said, "If the Court is not inclined to grant probation to [defendant] one more time ...." The court said, "I'm not." Then defense counsel requested the court impose the low term and strike the GBI enhancement. The court asked if there was any legal cause why it should not pronounce sentence, and defense counsel said, "No legal cause." The court proceeded to state that it found no unusual circumstances, but it was mindful defendant had no prior criminal history, and that he had already been given an opportunity at probation. The court found overwhelming evidence that defendant understood there was a prohibition and went to the home anyway. It commented that defendant chose to testify at the probation violation hearing "in the way that absolutely removed all doubt [it] had that he was aware of the existing restraining order." The court denied probation and imposed the low term on count 1, since defendant had no prior record; however, it did not mitigate the sentence on the GBI enhancement because of the underlying facts that the victim was choked to unconsciousness, which the court said was "extraordinarily dangerous." Thus, the court imposed a total term of six years in state prison, consisting of the low term of two years on count 1 and a consecutive four years on the GBI enhancement.
DISCUSSION
The Court Did Not Commit Reversible Error in Sentencing Defendant to Prison Without a Probation Report
Defendant argues it was error for the court to revoke his probation and sentence him without the benefit of a probation report, since a written report was required under section 1203.2, subdivision (b). He contends his sentence should be reversed and the matter remanded for the court to order a probation report and resentence him. We conclude defendant waived his claim. In any event, any error in not ordering a probation report was harmless.
A. Relevant Law
Section 1203.2, subdivision (a), provides that if any probation or peace officer has probable cause to believe that a person on probation had violated any term or condition of their supervision, the officer may rearrest the person. Thereafter, "the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of their supervision ...." (§ 1203.2, subd. (a).)
Section 1203.2, subdivision (b)(1), provides the court may modify, revoke, or terminate the supervision of a person, upon its own motion or upon the petition of the supervised person, the probation or parole officer, or the district attorney. It further provides that "[t]he court shall give notice of its motion, and the probation or parole officer or the district attorney shall give notice of their petition to the supervised person, the supervised person's attorney of record, and the district attorney or the probation or parole officer, as the case may be." (§ 1203.2, subd. (b)(1).) "The court shall refer its motion or the petition to the probation or parole officer. After the receipt of a written report from the probation or parole officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require." (Ibid.) A probation officer's report is not required, however, when the defendant waives his right to the report. "The parties may stipulate to the waiver of the probation officer's investigation and report in writing or in open court and entered in the minutes, and with the consent of the court." (Cal. Rules of Court, rule 4.411(b).)
Section 1203.2, subdivision (c), provides that, "[u]pon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced."
B. Defendant Waived His Claim That the Court Erred in Sentencing Him Without a Probation Report
Defendant does not dispute that he violated the terms of his probation. He only claims the court erred in sentencing him after finding him in violation without the benefit of a probation report. Defendant relies upon section 1203.2, subdivision (b), in arguing that the court was required to refer the matter to the probation department for a written report before sentencing him upon revocation of his probation. We first note that defendant waived a probation report at his initial sentencing. (See post.) Further, the record reflects that defense counsel "voiced no objection to proceeding with resentencing without a supplemental probation report and specifically stated there was no legal cause why judgment could not be pronounced." (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556 (Begnaud).) A timely objection to the absence of a report would have permitted the court to consider the issue and order a report. (See People v. Llamas (1998) 67 Cal.App.4th 35, 39 (Llamas).) Defendant's actions at the sentencing hearing effected a waiver of his right to later object to the absence of a probation report. (See Ibid.; see also Begnaud, at p. 1556.)
Defendant also cites People v. Dobbins (2005) 127 Cal.App.4th 176 (Dobbins) in support of his position. However, Dobbins is distinguishable. In that case, the defendant was placed on probation pursuant to a plea agreement and then violated his probation. On appeal, the defendant claimed the trial court erred by failing to order and consider an updated or supplemental probation report before declining any further grant of probation. (Id. at p. 178.) Dobbins is distinguishable in that there was a probation report at the time of the initial sentencing, and the issue on appeal was whether "the eight-month period of time between the original probation report and defendant's resentencing [was] a 'significant period of time' within the meaning of California Rules of Court, rule 4.411(c)" such that an updated report was needed. (Id. at pp. 178, 180.) The court found that the eight months between the original report and resentencing was a" 'significant period of time'" under rule 4.411(c) since it was in excess of the six months referred to in an advisory committee comment and included two months when the defendant was released on probation and was "not under the watchful eyes of custodial authorities." (Id. at p. 181.) Accordingly, the court held that the trial court erred by proceeding without ordering an updated report. (Ibid.) The court added that its decision was "necessarily predicated on the facts of this case." (Id. at p. 181, fn. 3.)
In the instant case, when defendant pled guilty on March 9, 2022, the court advised him of his right to have the probation department prepare a sentencing report and informed him that he could waive the report and be sentenced pursuant to the plea agreement. Defendant waived the report. Thus, unlike Dobbins, there was no initial probation report. As such, there was no issue regarding whether an updated report was needed because a significant amount of time had passed. (See Dobbins, supra, 127 Cal.App.4th at p. 180.)
C. Any Error Was Harmless
Assuming the trial court erred by failing to order a probation report at resentencing, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 834836. (See Dobbins, supra, 127 Cal.App.4th at p. 182.) Defense counsel submitted a sentencing brief arguing that defendant should be placed back on probation since there was no guarantee he understood the no contact order, given the language barrier.
Counsel also asserted defendant went to the house just to grab his belongings, out of necessity, and he had no prior criminal record. Defense counsel further argued these mitigating factors at the resentencing hearing. Thus, the court was well aware of defendant's specific circumstances, yet it definitively stated it had no inclination to grant him probation again. The court stated that defendant had already been given an opportunity at probation and found there was overwhelming evidence that he understood the no contact order and went to the home anyway. The court gave defendant the mitigated sentence of two years on count 1 because defendant had no prior criminal record and sentenced him to the low term of two years. However, it found "nothing to mitigate" the term on the GBI enhancement, noting that defendant choked the victim to unconsciousness, which it found to be "extraordinarily dangerous." Thus, the court sentenced him to the middle term of four years on the GBI enhancement, for a total term of six years. It is not reasonably probable the court would have imposed a different sentence, even with a probation report, since the court had all the relevant evidence and a probation report would have not provided any other significant information.
Defendant then claims there was prejudice in "not having a report and probation's involvement at the time of the original sentencing." He contends that, "[w]ithout probation's input at the original sentencing or the sentencing after revocation, there was no input from a neutral third party." However, as discussed ante, defendant expressly waived the probation report at the time of the original sentencing. Further, both parties submitted sentencing briefs; thus, the court had ample information before it to make a determination. Defendant claims that "an attorney's words do not have the weight of the probation department ...." We note that "[a] probation report is advisory only." (Llamas, supra, 67 Cal.App.4th at p. 40; People v. Lippner (1933) 219 Cal. 395, 403 [The court "may reject in toto the report and recommendation of the probation officer."].)
Ultimately, defendant claims he would have received the more favorable result of either probation or five years in prison (as opposed to six), with a probation report. However, the court clearly stated that it had no intention of placing him on probation again, and there was no reason to mitigate the sentence on the GBI enhancement. Accordingly, it is not reasonably probable that defendant's sentence would have been any different had a probation report been prepared.
DISPOSITION
The judgment is affirmed.
We concur: MILLER Acting P.J. CODRINGTON J.