Opinion
E074607
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. SCOTT ELLIS SARPHIE, Defendant and Appellant.
Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18003466) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In 2019, defendant and appellant Scott Ellis Sarphie pleaded no contest to receiving a stolen vehicle in violation of Penal Code section 496d. In exchange, nine prior conviction allegations were dismissed, and defendant was sentenced to a three-year split term with credit of 150 days in custody and the balance to be served on mandatory supervision on various terms and conditions. After the trial court found that defendant had violated the terms of his mandatory supervision by failing to report to the probation department as ordered, the trial court revoked defendant's mandatory supervision and ordered him to serve the remainder of his term in custody.
All future statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court abused its discretion and violated his right to due process when it refused to reimpose a split sentence with mandatory supervision because his failure to report to probation was his first and only violation, the violation was minimal, and the reporting requirement as ordered was fundamentally unfair. He also argues the violation was not his fault because the trial court ordered him to report for his initial orientation to the probation office in Victorville, even though it knew he would have trouble finding transportation to report in Victorville. We reject these contentions and affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 19, 2018, defendant was arrested for driving a stolen box truck in Hesperia, California.
Pursuant to a plea agreement, on February 1, 2019, defendant pleaded no contest to receiving a stolen vehicle (§ 496d). In return, the People dismissed nine prior conviction allegations and defendant was promised that he would be sentenced to a three-year split term on mandatory supervision. The parties also agreed that, upon successful completion of mandatory supervision, defendant could withdraw his plea, a misdemeanor plea would be entered in its place, and a section 1203.4 dismissal request would not be opposed.
After he pleaded no contest, upon his request, defendant was immediately sentenced in accordance with his plea agreement to a three-year split sentence with credit for 150 days in custody. The court suspended the remaining sentence of two years seven months and placed defendant on mandatory supervision on various terms and conditions. One term of his mandatory supervision required defendant to report to the probation department immediately upon release from jail or by the close of the second business day following his release. The mandatory supervision terms and conditions form regarding the reporting requirement had the Fontana Probation Department checked. The form also noted the four probation department offices in San Bernardino, Joshua Tree, Victorville, and Fontana, and the department's phone number and address.
Defense counsel asked the trial court if defendant could report to the probation office in Fontana instead of Victorville. Counsel explained that defendant lived in Ontario and did not have transportation to get to the Victorville office. The court responded, "I don't know if I can do that. I don't think I can. I think initially he would report to Victorville and then they transfer it to Fontana. Right now, they have the file." Defense counsel then inquired if defendant could have a week to report. Defendant interrupted explaining that he did not think there was a bus he could take to Victorville, and he did not want to be "non-compliant." The court agreed to give defendant a week, ordering him to report to the Victorville office by February 8, 2019. The court noted that defendant could then ask his probation officer to transfer his file to Fontana. The court explained, however, that if defendant did not show up at the Victorville probation office within a week, probation would violate him and suggested that defendant call a relative for a ride. Defendant responded, "I can walk within a week." Defense counsel stated that if defendant could not find transportation to Victorville, he would contact counsel, who would then calendar the matter so they could readdress the issue. The court responded that was "fine," and defendant thanked the court for allowing him a week to comply.
Defendant was released from custody on February 1, 2019, and failed to report to probation by February 8, 2019. Three days later, on February 11, the probation department sent an appointment letter to defendant's last known address in Ontario ordering him to report to probation on February 19, 2019. Defendant did not report to probation at that time, leaving his whereabouts unknown for approximately 10 months.
On February 28, 2019, the San Bernardino County Probation Department filed a petition to revoke defendant's mandatory supervision. A bench warrant was also issued for defendant's arrest. Defendant was arrested on December 12, 2019.
A hearing on the petition to revoke defendant's mandatory supervision was held on January 24, 2020. San Bernardino County Probation Officer Karen Nuccio testified that defendant did not appear for his initial orientation after his release on February 1, 2019, and that a letter was sent to defendant's last known address in Ontario with an appointment scheduled for February 19, 2019. Nuccio spoke with defendant on the phone on December 13, 2019, the day after his arrest, and defendant informed her that he had been ordered to check in at the Victorville probation office following his release, but he did not have transportation to get there. He admitted that he did not check-in with probation. Defendant explained that after the time for reporting passed, he panicked and decided not to contact probation because he figured he would just get arrested and "gave up." He also stated that he was "essentially homeless" and did not have a car. As a general policy, Nuccio believed that defendant could have reported for orientation at any San Bernardino County Probation Department office, including Ontario or Fontana. There was no record of defendant attempting to contact any probation department between the time of his release and the time of his arrest on the bench warrant. Nuccio acknowledged that this was defendant's first alleged violation.
Following argument from the parties, the trial court terminated defendant's mandatory supervision, denied his request to reimpose a split sentence (with extra custody time), and sentenced him to the suspended term of two years seven months in jail with 230 days' credit for time served. The court explained its ruling as follows: "After hearing Probation Officer Nuccio, and looking, most tellingly on pages three, four, five, and six, of the supplemental report, it is evident to the Court that this is not, to quote a matter, [defendant]'s first rodeo. In 1986 he was placed on felony probation, probation revoked. Then in '89, he was placed on felony probation, sentenced to 16 months prison with four violations of parole. Then you get to 2005, 2006, I could go on and on. My bottom line is that if he were a probationer who had—who was completely unfamiliar with the workings of probation, perhaps I would resplit the split. Because I see violations of parole and several violations of probation. That tells me . . . he knows exactly what's going on. [¶] You have a good point with respect to the Courts in this courthouse telling the defendants to report to Victorville Probation. We do that as a matter of routine. It's requested by Victorville Probation Department that we do that. Even if they're in Barstow, we ask them to go to Victorville first. But because of his intricate knowledge of probation procedure, he knows there's more than one probation office. He could call Probation collect and say, I'm stuck down here at West Valley, I can't make it up the hill. No probation officer in his or her right mind is going to violate somebody trying to get in touch. Just to give up tells me, [l]et them come get me. And that is not an acceptable attitude. [¶] For that reason, the Court is definitely not inclined to resplit the split. I find [defendant] in violation of his probation and will make the following order . . . . It's hereby the order of this Court that mandatory supervision remain revoked and the sentence heretofore suspended in the amount of two years, seven months, now be imposed. . . ."
On January 29, 2020, defendant timely filed a notice of appeal. We affirm.
III. DISCUSSION
Defendant argues the trial court's decision to not reimpose a split sentence with mandatory supervision was an abuse of discretion and fundamentally unfair in violation of his due process rights because (1) his failure to report to probation was his first and only violation; (2) the violation was minimal; and (3) the violation was not his fault as the court ordered him to report for his initial orientation to the probation office in Victorville, even though it knew defendant would have trouble finding transportation to report in Victorville. He asserts the purpose of this appeal is to reverse the trial court's decision not to impose a split sentence and "to correct the widespread error routinely committed by the Victorville court in ordering criminal defendants to initially report to the Victorville probation department without providing information concerning their other options."
This court does not have the authority "to correct the widespread error routinely committed by the Victorville court in ordering criminal defendants to initially report to the Victorville probation department" or the customs and practices of the San Bernardino County Sheriff's Department relating to when and where a prisoner is released. However, we take into consideration these factors in evaluating whether the trial court abused its discretion in failing to reinstate defendant on mandatory supervision.
Under the Criminal Justice Realignment Act of 2011 (Realignment Act), "'qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision.' [Citation.]" (People v. Camp (2015) 233 Cal.App.4th 461, 467 (Camp); accord, People v. Catalan (2014) 228 Cal.App.4th 173, 178 (Catalan).) The trial court here placed defendant on mandatory supervision under section 1170, subdivision (h)(5)(B), which states in relevant part: "During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3." (§ 1170, subd. (h)(5)(B).)
Section 1203.2, subdivision (a), provides in relevant part that at any time during the period of supervision the court may, upon rearrest of the person or issuance of a warrant for rearrest, "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 . . . ." Further, the court may modify or revoke supervision for a person upon petition from, among others, a probation officer or the district attorney upon proper notice being given. (§ 1203.2, subd. (b)(1).) "Upon 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." (§ 1203.2, subd. (c).)
A trial court "enjoys broad discretion in matters involving probation and sentencing, and the defendant bears the burden of proof when alleging an abuse of discretion." (Catalan, supra, 228 Cal.App.4th at p. 179.) We review a trial court's modification or revocation of mandatory supervision for abuse of discretion. (Id. at pp. 178-179.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Here, there is no dispute that defendant willfully violated the reporting term of his mandatory supervision. Defendant did not report to probation, or even attempt to contact them through his counsel or by phone, from the date of his release on February 1, 2019, to when he was eventually rearrested on December 12, 2019. Defendant admitted to the probation officer that he did not contact probation because he was afraid of being arrested. The main goals of mandatory supervision are to minimize public risk and encourage a defendant's rehabilitation. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The probation department, however, was not able achieve these goals because defendant absconded from supervision. Under these circumstances, we cannot find that defendant's intentional failure to report to probation for over 10 months was a minimal violation.
Although defendant unquestionably had obstacles in initially reporting to the Victorville probation office as ordered by the court, the record indicates defendant had an opportunity to report to probation if he chose to do so. Even after his February 8, 2019 reporting date passed, the probation department had sent an appointment letter to defendant's last known address in Ontario ordering him to report to probation on February 19, 2019. Defendant also was aware that there were four probation departments listed on his mandatory supervision terms and conditions form that he could have attempted to contact to inform probation of his obstacles. Regarding the reporting requirement, the form had the Fontana Probation Department checked. The form also noted the four probation department offices in San Bernardino, Joshua Tree, Victorville, and Fontana, and the department's phone number and address.
Defendant argues calling the probation department to explain his situation was not an option because the preprinted mandatory supervision terms and conditions form concerning the reporting requirement provided that he could only call the office if he were removed from the United States. This contention lacks merit. The reporting condition specifically states, "Report to the probation officer in person immediately or upon release and thereafter as directed. If you are removed from the United States, you are to report to the Probation Officer by phone or mail within fourteen (14) days of your release from immigration custody and inform the Probation Department of your address and phone number." Although the reporting term required defendant to appear in person, the term did not prohibit him from calling the probation office if he had trouble finding transportation. It contained instructions on what to do if he were removed from the United States by immigration, which he was not. As the trial court noted, no probation officer in his right mind would have violated defendant if he were truly trying to find a way to get to the probation office.
We also reject defendant's contention that the reporting term concerning whether he could call the probation department was "at best ambiguous." Not only is this term not ambiguous, but defendant never objected to the term being ambiguous. Challenges to conditions of mandatory supervision ordinarily must be raised in the trial court, and if they are not, appellate review of those conditions is forfeited. (See People v. Welch (1993) 5 Cal.4th 228, 234-235.) Accordingly, he forfeited the challenge that the reporting term was ambiguous. --------
Moreover, as the trial court informed defendant at the time of sentencing, he could have asked a friend or relative for a ride to Victorville, he could have taken public transportation, or he could have requested that his defense counsel schedule a hearing to address his inability to find transportation (as defense counsel stated defendant would do if he truly could not find a ride to Victorville). Instead, he did nothing, and now attempts to shift the blame to the trial court for his failure to ever report to probation. The trial court was not unsympathetic to defendant's predicament. While we agree that a superior court or a probation department should not routinely order a defendant to initially report to a probation office outside of a defendant's residential area, especially knowing a defendant's lack of transportation to report at a distant probation office, here the trial court provided defendant with options. In addition, defense counsel had informed the court if defendant could not find transportation to Victorville, he would contact counsel, who would then calendar the matter so they could readdress the issue. Furthermore, as the court also pointed out, defendant had an extensive criminal history, which involved numerous prior violations of probation and parole. Defendant thus was familiar with the criminal justice system and knew the importance of complying with the terms of his conditional release and the consequences of failing to do so.
The record does not reflect that the trial court discounted defendant's obstacles in reporting to the Victorville probation office. However, defendant made no efforts to report in person or notify probation or the court or his counsel of his transportation issues. We agree with defendant that it was undoubtedly difficult for him to report in person promptly because he was unforeseeably released in Rancho Cucamonga at night. However, even if defendant should have been ordered to report to the local probation department, its failure to do so does not forever excuse defendant of his own obligations.
Defendant maintains that "[t]his appeal is about fundamental fairness" and that "the proceedings were fundamentally unfair as a whole in violation of due process because of a whole host of factors—some created by the trial court, some created by the San Bernardino County sheriffs, some created by environmental forces (e.g., the geographic layout of San Bernardino County), some created by [defendant]." While we agree that defendant should have been ordered to report to his local probation office, defendant has not presented persuasive authority or argument indicating his due process rights were violated or that the proceedings were fundamentally unfair. As previously explained, defendant had opportunities to report to probation and to address his transportation obstacles to report in person at the Victorville office for an initial orientation with probation or his counsel. Nevertheless, he intentionally failed to do so and absconded from mandatory supervision for over 10 months.
Due to the alleged fundamental unfairness, defendant believes the trial court erred by declining to reinstate mandatory supervision. However, the trial court is vested with broad discretion in determining whether to reinstate mandatory supervision following revocation of supervision. (Catalan, supra, 228 Cal.App.4th at p. 179.) Having considered the whole record, we perceive no abuse of discretion in the trial court's decision to require that defendant serve the remainder of his sentence in custody when he failed to comply with the very initial step of compliance with mandatory supervision.
Based on the foregoing, we cannot say that the court abused its broad discretion in determining, in the interests of justice, that a reinstatement on mandatory supervision was not appropriate in the particular circumstances of this case. (See Camp, supra, 233 Cal.App.4th at p. 467; People v. Stuckey (2009) 175 Cal.App.4th 898, 916 ["What the interests of justice require in a particular case constitutes a question uniquely addressed to the broad judicial discretion of the trial court"]; accord, Catalan, supra, 228 Cal.App.4th at p. 179; see also § 1170, subd. (h)(5)(A).)
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. RAPHAEL
J.