Opinion
B203643
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. JOVAN TAYLOR, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Defendant and appellant Jovan Taylor (defendant) pleaded no contest to one count of possession of marijuana for sale (Health & Saf. Code, § 11359) and was placed on formal probation for three years on various terms and conditions. Following several revocations and reinstatements of probation, defendants probation ultimately was revoked and terminated and the trial court sentenced defendant to the upper term of three years in state prison. On appeal, defendant contends that the trial court erred in selecting the upper term because that selection was based on events that occurred after the initial grant of probation. Defendant also contends that the trial courts selection of the upper term violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham) because it was based on facts not admitted by defendant or found by a jury. We reverse defendants upper term sentence and remand to the trial court for resentencing because the trial court based defendants sentence impermissibly on events that occurred after the initial grant of probation and any reinstatement of that probation.
BACKGROUND
Because the issues on appeal do not concern the facts surrounding defendants underlying offense, we dispense with a recitation of those facts. Instead, we set forth the facts concerning defendants probation violations that served as the basis for the trial courts ultimate imposition of sentence.
On April 26, 2004, defendant pleaded no contest to one count of possession of marijuana for sale. The trial court placed defendant on formal probation for three years. On August 3, 2004, the District Attorneys office filed a request to revoke defendants probation based on the allegation that defendant had sold cocaine base in violation of Health and Safety Code section 11352. Defendants probation apparently was revoked based on that allegation, and subsequently reinstated.
In a motion dated September 21, 2006, the District Attorneys office moved to revoke defendants probation alleging that defendant violated his probation by violating a restraining order that had been issued in a domestic violence case involving defendants former girlfriend and cohabitant by making threatening telephone calls to her. The documents supporting the motion reflect that defendant was convicted of misdemeanor cohabitant abuse on July 11, 2006 and placed on summary probation for 36 months. On November 16, 2006, defendant admitted violating his 2004 probation; the trial court found that defendant violated that probation by his misdemeanor cohabitant abuse conviction. The trial court revoked and reinstated defendants probation on the same terms and conditions, except that defendant also was to serve 30 days in jail.
A supplement probation officers report for a January 16, 2007 hearing states that defendant was not in compliance with his probation because he had failed to provide his probation office with proof of registration as a narcotics offender. Defendant failed to appear at the hearing, and the trial court revoked his probation. On January 26, 2007, the trial court reinstated defendants 2004 probation on the same terms and conditions. The trial court ordered defendant to report to the Probation Department by January 29, 2007, and to return to court with proof of registration as a narcotics offender. Defendant failed to appear in court with proof of registration as a narcotics offender and a bench warrant was issued.
On February 9, 2007, defendant appeared in court with proof of registration as a narcotics offender. The trial court reinstated defendants 2004 probation on the same terms and conditions as the original probation. The minute order for February 9, 2007 does not indicate that the trial court had revoked defendants probation.
On February 14, 2007, the District Attorneys office filed a request to revoke defendants probation. The motion alleged that defendant violated his probation on February 9, 2007 by committing an assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and, apparently, misdemeanor possession of marijuana (Health & Saf. Code, § 11357). The trial court revoked defendants probation. The matter was continued, ultimately, to October 23, 2007.
In an amended information filed on April 10, 2007, in Los Angeles Superior Court Case number BA317009, the District Attorneys office alleged that defendant committed assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) with various special allegations not relevant here, and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b).) We granted defendants request to judicially notice the amended information from that case.
On October 23, 2007, the trial court announced its tentative finding that the prosecution had proved by a preponderance of the evidence that defendant had violated his probation in this case and in the misdemeanor "spousal battery" case. The trial courts tentative sentence was the middle term of two years for defendants conviction in this case (Health & Saf. Code, § 11359; § 18) and a consecutive one year term for defendants cohabitant abuse conviction (§ 273.5, subd. (a)).
As a preface to its tentative finding, the trial court stated that it had "heard all the testimony at trial." This reference appears to be a reference to a trial of the assault by means of force likely to produce great bodily injury and misdemeanor possession of marijuana charges. The jury apparently convicted defendant of the marijuana possession charge and could not reach a verdict on the assault charge. The record on appeal does not contain a transcript of that trial.
Defense counsel stated his belief that the trial court did not need to find a probation violation by the preponderance of the evidence because "we" had conceded that defendant possessed marijuana in violation of Health and Safety Code section 11357, and a jury had convicted him of that offense. The trial court responded that it would not send someone to prison for a "marijuana misdemeanor," but would for "beating a person within an inch of his life." The trial court also stated that defendants performance on probation had been "quite poor," noting that defendant had "picked up" new cases since the grant of probation including "this case" —i.e., the assault by means of force likely to produce great bodily injury and misdemeanor marijuana possession case.
The prosecutor argued that the trial court should impose the upper term of three years for defendants probation violation in this case, and not "max" out defendant for his misdemeanor cohabitant abuse conviction. The prosecutors apparent concern was that the trial court would lose jurisdiction to order defendant to attend classes (apparently domestic violence classes) if defendant received a one year sentence for his cohabitant abuse conviction. The trial court indicated to defense counsel that it believed the prosecutors argument had merit. Defense counsel objected to the upper term for defendants possession of marijuana for sale conviction on the ground that a sentence following a probation violation must be based on the circumstances as they existed at the time of the grant of probation and defense counsel did not believe that the upper term had been "recommended" at that time.
The trial court inquired if defense counsels position was that the trial court could not take into account defendants performance on probation in imposing a sentence. Defense counsel stated that he was unsure of the case law, but understood that the trial court had to rely on the circumstances at the time of the grant of probation. The trial court offered to continue sentencing for a week so that defense counsel could research the issue. After taking a moment, defense counsel stated, "Your honor, thats fine. Were going to go ahead and submit on the courts indicated. As far as the 273.5, my client is going into state custody. Id ask that his probation on the misdemeanor be revoked and the court do whatever it wants as far as imposing time, whether its consecutive or concurrent time on that. [¶] If the court is going to impose consecutive time on the 273.5, Id ask that the court give mid term as a state prison sentence on the probation violation for the reasons Ive already stated. [¶] If the court is going to follow the Peoples request and keep him on probation on the misdemeanor, then Im not going to quibble with high term on the 11359 probation violation. [¶] Given his credits, either one, it seems to be almost moot really. I dont want to come back, [defendant] does not want to come back. I dont know if [the assault victim] would want to be here at the ultimate time of sentencing, but hes here now. Were just prepared to go ahead."
The trial court stated her belief that it would be "very valuable" and "helpful" for defendant to take "the classes" given the seriousness of the cohabitant abuse case. The trial court selected the three year upper term sentence for defendants possession of marijuana for sale conviction and reinstated probation for his cohabitant abuse conviction. The trial court selected the upper term of three years "for all the reasons that [it] said earlier, which includes the facts of the current case in which he participated in a brutal beating of the victim, and his performance on probation in this case in the last three and a half years, which has not been very good." The trial court apparently dismissed the assault by means of force likely to produce great bodily injury charge.
DISCUSSION
I. Imposition Of The Upper Term Based On Events That Occurred After The Initial Grant Of Probation
Defendant contends that the trial court erred in relying on events that occurred after it initially granted him probation in sentencing him to the upper term. We agree.
A. Defendant Did Not Forfeit Review Of This Issue
Respondent contends that defendant forfeited review of this issue when defense counsel declined the trial courts offer to continue the sentencing hearing to allow defense counsel time to research whether a sentence following revocation and termination of probation may be based on events that occurred after the initial grant of probation, and instead submitted on the trial courts tentative ruling. Review of this issue was not forfeited.
Unquestionably, defense counsel objected to the trial courts reliance on events that occurred after the initial grant of probation when it sentenced defendant to the upper term. Defense counsels subsequent remarks and submission on the trial courts tentative ruling are construed fairly as expressing defense counsels desire to move the case to a conclusion, and not as abandoning his objection to the events upon which the trial court based its sentence.
B. Application of Relevant Legal Principles
Under California Rules of Court, rule 4.435(b)(1), when a trial court sentences a defendant to prison upon revocation and termination of probation, "[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term . . . ." Here, although the trial court also referred to defendants poor performance on probation, it is clear that the trial court primarily based its decision to send defendant to prison based on defendants conduct in the assault by means of force likely to produce great bodily injury case. Indeed, the trial court went so far as to state that it would not have sent defendant to prison based on his misdemeanor marijuana possession conviction but would for "beating a person within an inch of their life." When the trial court considered events that occurred subsequent to the initial grant of probation, it violated rule 4.435(b)(1).
All citations to rules are to the California Rules of Court.
Respondent argues that the trial court was permitted to consider events subsequent to the initial grant of probation under People v. Harris (1990) 226 Cal.App.3d 141. In People v. Harris, the court of appeal considered the application of rule 4.435(b)(1) (then rule 435(b)(1)) to a situation in which probation was granted, revoked and then reinstated on modified terms as part of a negation disposition. (People v. Harris, supra, 226 Cal.App.3d at p. 145.) The court of appeal viewed the reinstatement of probation on modified terms as a new grant of probation within the rules (ibid.) and held that "a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement." (Id. at p. 147.)
Respondent appears to concede that even under People v. Harris, supra, 226 Cal.App.3d 141, the trial court erred under rule 4.435(b)(1) in relying on defendants conduct in the assault by means of force likely to produce great bodily injury case and on defendants misdemeanor marijuana possession conviction. Respondent argues, however, that the trial court relied "largely" on defendants conviction for cohabitant abuse and his poor performance on probation in sentencing defendant. The trial court properly considered these events, respondent argues, because they occurred between the initial April 2004 grant of probation and the November 2006 revocation and reinstatement of probation.
Even if the trial court properly considered defendants cohabitant abuse conviction under People v. Harris, supra, 226 Cal.App.3d 141, in sentencing defendant, the trial court did not rely "largely" on events that occurred between the initial grant of probation in April 2004 and the revocation and reinstatement of probation in November 2006. As discussed above, the trial court primarily based its sentencing choice on defendants conduct in the assault by means of force likely to produce great bodily injury case. Moreover, in relying on defendants "quite poor" performance on probation, the trial court did not rely solely on events that occurred between April 2004 and November 2006. When the trial court explained the basis for its finding that defendants performance on probation was "quite poor," it identified defendants conduct in the assault by means of force likely to produce great bodily injury and misdemeanor marijuana possession case, events that occurred after November 2006.
C. Prejudice
Respondent contends that any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 because the trial courts comments show that it would have selected the upper term based solely on the properly considered factors of defendants cohabitant abuse conviction and his poor performance on probation. We disagree.
The trial court made clear that its originally intended two year middle term sentence was based primarily on defendants "brutal" conduct in the assault by means of force likely to produce great bodily injury case. None of the trial courts comments is fairly interpreted as conveying an intent to select the upper term based solely on defendants cohabitant abuse conviction and poor performance on probation. Moreover, as discussed above, the trial courts reliance on defendants poor performance on probation improperly considered events occurring after November 2006.
Respondent also argues that there was no prejudice because even if the case were remanded for resentencing, defendants total sentence of three years in state prison would not change. Here, respondent points out that the trial court initially announced its intention to sentence defendant to the middle term of two years on his possession of marijuana for sale conviction and a consecutive one year term for his misdemeanor cohabitant abuse conviction for a total of three years. Respondent contends that such a sentence matches the sentence defendant actually received — the upper term of three years for his possession of marijuana for sale conviction. Thus, respondent argues, defendants prison term would remain three years on remand. Respondents argument is flawed for two reasons.
First, the two sentences are not equivalent. In the sentence defendant received, he was to continue on probation for his cohabitant abuse conviction after serving the three year term. In the trial courts initially announced sentence, there was no continuation of probation. Second, the trial courts initially announced two year middle term sentence for possession of marijuana for sale was tainted because it also was based on the trial courts improper consideration of defendants conduct in the assault by means of force likely to produce great bodily injury and misdemeanor marijuana possession case. There is no reliable indication in the record that absent the consideration of this conduct the trial court still would have selected the middle term.
Respondent also contends that defendants criminal history justifies an upper term sentence. The trial court was aware of defendants criminal history when it originally announced its intention to sentence defendant to the middle term for his possession of marijuana for sale conviction and when it ultimately sentenced defendant to the upper term for that conviction. At no point in discussing the appropriate sentence for defendants offense did the trial court discuss that history.
II. Cunningham Error
Defendant contends that the trial courts imposition of the upper term sentence violates Cunningham, supra, 549 U.S. 270 because it was based on facts not admitted by defendant or found by a jury. Because we hold that the trial court erred in imposing the upper term based impermissibly on events subsequent to the grant of probation and remand to the trial court for resentencing, we need not consider defendants additional argument under Cunningham.
DISPOSITION
The sentence is reversed and remanded for resentencing. The judgment is otherwise affirmed.
We concur:
TURNER, P. J.
ARMSTRONG, J.