Opinion
B332316
10-31-2024
THE PEOPLE, Plaintiff and Respondent, v. MARK GOODE, Defendant and Appellant.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA158370 Sean D. Coen, Judge. Affirmed in part and remanded with instructions.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
WILEY, J.
Mark Goode argues the trial court erred in revoking his probation, sentenced him incorrectly, imposed an improper parole revocation restitution fine, and miscalculated his custody credits. We remand for the trial court to vacate the restitution fine and recalculate his custody credits but otherwise affirm.
I
The prosecutor charged Goode with two counts of second degree commercial burglary. Goode entered a plea of nolo contendere to one count of second degree commercial burglary. In September 2022, the trial court placed him on two years formal probation. The court told Goode he was required to report to the probation office within two working days, i.e. by the following Monday. Goode did not do so. At the restitution hearing in October, the trial court revoked Goode's probation and issued a bench warrant.
Police picked Goode up in February 2023 and he surrendered on the warrant. Goode was released with orders again to report to the probation office within 48 hours. He again failed to do so.
In March 2023, the prosecutor filed a motion requesting revocation of probation and attaching a police report stating Goode had been arrested on a charge of intimate partner violence with injury. Goode remained in custody until his formal revocation hearing.
At the hearing, the officer who arrested Goode testified to what the victim and a witness reported at the crime scene. Goode's counsel made no hearsay objection. Goode's defense was that his failure to report to the probation officer was not willful because he forgot. He testified,
"I meant to go downstairs. I was supposed to go straight downstairs. Then once I got out, once they had released me, I forgot to go down there.... [¶] . . . I forgot to go down there. Then I was, like - cause I thought they said at first I have - thought they said that I could come back. As long as I came back, I wasn't - I didn't know that they said 48 hours. I thought they said that once I was released that as long as I go and check in, but now that I think about it, I'm - it's what they said. I wasn't clear on what they said that it was 48 hours, but, now, I think back, it -they did say 48 hours."
He argued his possessions, including his paperwork and ID, had been taken in a sweep of the homeless encampment where he lived, further hindering his efforts. The sweep occurred while Goode was in custody.
The trial court revoked Goode's probation. The court stated, "[B]ased upon the evidence that was submitted both by way of not reporting as well as a new what the court would consider a violent crime, . . . I do find him in violation of probation based upon the fact that he never reported, based upon the new arrest and the prior record of [Goode], which I read through the supplemental report.
"I don't believe he's a suitable candidate for probation any longer. Probation will be denied. Court will impose sentence in this matter. Based upon the record, court will select the mid term of two years in this matter."
Goode appeals.
II
Goode argues the court made four errors: (1) improperly revoking his probation; (2) considering inappropriate factors in sentencing him; (3) improperly imposing a parole revocation restitution fine; and (4) miscalculating his custody credits. We affirm the court's judgment on the first two issues and remand for the court to vacate the restitution fine and recalculate Goode's custody credits.
A
Goode argues the trial court based its erroneous revocation of probation ruling on three grounds: (1) Goode committed a new violent crime based only on hearsay evidence that violated Goode's due process rights; (2) Goode willfully failed to report to the probation office; and (3) Goode did not obey the law as required by the terms of his probation. Because substantial evidence supports the trial court's finding that Goode willfully failed to report to the probation office, we need not address the other issues.
A court may revoke probation where it finds by a preponderance of the evidence that the probationer violated a condition of release. (People v. Rodriguez (1990) 51 Cal.3d 437, 441-442.) To warrant revoking probation, the violation must be willful. (People v. Galvan (2007) 155 Cal.App.4th 978, 982 (Galvan).) We review the court's decision for substantial evidence and will not disturb the court's determination unless it abused its discretion. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Goode argues incorrectly that, because he forgot, his violation was not willful.
Goode argues his case is similar to People v. Zaring (1992) 8 Cal.App.4th 362, 378 (Zaring), People v. Cervantes (2009) 175 Cal.App.4th 291, 295 (Cervantes), and Galvan, supra, 155 Cal.App.4th at p. 982. These cases do not help him. In Zaring, the defendant was 22 minutes late, due to a last minute inability of a family member to drive her and child care issues, circumstances the court found were outside of her control. (Zaring, supra, 8 Cal.App.4th at p. 379.) In Galvan and Cervantes, the defendants were unable to report because they had been deported or taken into custody by immigration officials. (Galvan, supra, 155 Cal.App.4th at pp. 982-983; Cervantes, supra, 175 Cal.App.4th at pp. 293, 297.)
Goode's case is akin to People v. Sorden (2005) 36 Cal.4th 65. The Sorden court considered willfulness in the context of a duty to register as a sex offender. (Id. at p. 68.) The court rejected the notion that simply forgetting would negate willfulness. (Id. at pp. 68-69.) To allow such a defense would eviscerate the rule. (Id. at p. 72.)
Here, Goode's testimony establishes that, although he claims he forgot, he had been told of the requirement. "[No]w, I think back, it - they did say 48 hours." He provides no evidence of circumstances outside his control that hindered him from fulfilling this obligation. He missed the two-working-day deadline, and over the next several months, he kept missing it. Police eventually arrested him.
Goode also argues the evidence does not show he was aware of the 48-hour deadline, and therefore, he could not have willfully violated it. (People v. Garcia (2001) 25 Cal.4th 744, 752 [defendants cannot willfully fail to act where they do not know they are required to act].) The record belies this claim. The trial court told Goode the requirement at the time it placed him on probation, and his counsel confirmed with the court on the record that Goode had until Monday and the location of the probation office. Goode's own testimony establishes that, although he claims he did not recall at first, when he thought back, he did remember being told about the 48-hour deadline. (People v. Barker (2004) 34 Cal.4th 345, 351-352 ["Forgetting presupposes knowledge"].)
The trial court correctly found Goode willfully failed to report and thus violated a term of his probation.
B
Goode next contends the trial court erred in its sentencing because it considered improper factors. We review the court's imposition of sentence for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977.) Goode asserts, correctly, that a court imposing a sentence on a defendant after revocation of probation must only consider circumstances as they existed at the time the court granted the defendant probation. (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) Goode fails to show the trial court did otherwise.
At the formal probation revocation hearing, the trial court said it was revoking probation based on "evidence that was submitted [of] . . . the fact that he never reported, based upon the new arrest and the prior record of [appellant], which I read through the supplemental report." A few sentences later, the court said, "Based upon the record, court will select the mid term of two years in this matter." Goode argues this language supports a presumption the court considered Goode's entire record, including behavior and events after his original sentencing date, in sentencing him. This argument is incorrect.
We assume the trial court knew and followed the law absent evidence to the contrary. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390.) Nothing in the record suggests the trial court erred.
C
Goode argues the trial court erred in imposing a parole revocation restitution fine because he is not subject to a term of parole. Respondent agrees. So do we. We remand for the trial court to vacate the parole revocation restitution fee.
D
Goode asserts the trial court miscalculated his presentence custody credits. Respondent agrees, but comes up with a different number than Goode. We remand for the trial court to recalculate Goode's custody credits.
DISPOSITION
We remand for the trial court to vacate the parole revocation restitution fee and recalculate Goode's custody credits. We otherwise affirm the judgment.
We concur: STRATTON, P. J. VIRAMONTES, J.