Opinion
D082002
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO GERMAN ARMAS, Defendant and Appellant.
Eric Multhaup, under appointment by 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, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, No. FWV18003945 Mary E. Fuller, Judge. Affirmed.
Eric Multhaup, under appointment by 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, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
IRION, Acting P. J.
A jury convicted Antonio German Armas of one count of distributing child pornography (Pen. Code, § 311.1, subd. (a)), and one count of possessing child pornography (§ 311.11, subd. (a)). Armas was placed on two years of formal probation, to expire on August 16, 2023. After the trial court twice found that Armas violated the terms of his probation, the trial court reinstated formal probation, with a new expiration date of June 9, 2024, to account for the periods during which Armas's formal probation was summarily revoked pending the hearings on the petitions.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Armas appeals from the trial court's February 16, 2023 order extending the term of his formal probation to June 9, 2024. He argues, on several grounds, that the trial court erred in extending the expiration date. We conclude that Armas's arguments lack merit, and we accordingly affirm the February 16, 2023 order extending Armas's formal probation to June 9, 2024.
I. FACTUAL AND PROCEDURAL BACKGROUND
After Armas was convicted of two counts relating to child pornography (§§ 311.1, subd. (a), 311.11, subd. (a)), the trial court held a sentencing hearing on August 17, 2021, at which it placed Armas on formal probation for a period of two years, which was to expire on August 16, 2023.
The issues in this appeal arise from two consecutive petitions filed by Armas's probation officer alleging that Armas violated the terms of his probation.
A. The April 5, 2022 Petition
On April 5, 2022, the probation officer filed the first petition alleging that Armas had violated the terms of his probation. Although not all of the relevant reporter's transcript from the proceedings on the first probation revocation petition are in the appellate record, the minute order from an April 5, 2022 hearing states that Armas's probation was summarily revoked pending a hearing on the petition, and Armas was ordered to remain in custody. A further minute order reflects that on July 1, 2022, the trial court held a hearing at which it released Armas from custody on his own recognizance. The minute order states that probation remained summarily revoked. A probation revocation hearing was held on September 9, 2022. As reflected in the reporter's transcript for that hearing, the trial court (1) found Armas violated the terms of his probation; (2) imposed a suspended sentence of two years, eight months; and (3) reinstated formal probation.
At the conclusion of the September 9, 2022 hearing, the trial court stated that according to its calculations, Armas had "498 days of probation left." That statement establishes that the trial court extended Armas's period of probation by the 157 days during which probation was summarily revoked, resulting in a new expiration date of January 20, 2024.
We note that the minute order from the September 9, 2022 hearing incorrectly states, "Court orders Formal Probation (Supervised) Reinstated to expire 8/16/2023." "[T]he oral pronouncement of sentence controls over a subsequently entered minute order." (People v. Sanchez (2019) 38 Cal.App.5th 907, 918; see also People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 (Farell) ["The record of the oral pronouncement of the court controls over the clerk's minute order].) Thus, although the minute order conflicts, based on the trial court's oral pronouncement, as of September 9, 2022, the expiration date for Armas's probation was 498 days from September 9, 2022, i.e., January 20, 2024.
B. The September 28, 2022 Petition
On September 28, 2022, the probation officer filed a second petition alleging that Armas had again violated the terms of his probation, and the trial court held a hearing on that date. At the September 28, 2022 hearing, the trial court ordered that Armas was to remain in custody without bail but did not expressly state that probation was summarily revoked. The September 28, 2022 minute order states that formal probation was revoked as of that date.
At a November 18, 2022 hearing, Armas was granted leave to represent himself, and he was released from custody on bail on his own recognizance.
At a December 2, 2022 hearing, the trial court observed that Armas's probation was currently revoked. Specifically, the trial court asked the prosecutor whether Armas was "continuing to be supervised at this time," even though "[p]robation has been revoked." Later, in questioning the probation officer, the trial court asked, ". . . if I could just inquire briefly. . . And I understand you have an obligation to continue to supervise him, is that right, even though probation is revoked?" The probationer officer answered, "That's correct."
A series of hearings were held in January 2023, while Armas was in the process of deciding on counsel to represent him.
On February 10 and February 16, 2023, the trial court finally proceeded with the hearing on the probation officer's petition. At the conclusion of the hearing, the trial court found that Armas had violated the terms of his probation. Concluding that the violation was minor, the trial court decided to reinstate Armas's formal probation instead of imposing the two-year eight-month suspended sentence. The trial court extended the expiration date of Armas's probation to June 9, 2024, explaining that it had added on additional days of formal probation based on the number days that Armas's probation was summarily revoked.
Armas filed a notice of appeal from the trial court's February 16, 2023 order.
II.
DISCUSSION
Armas argues that the trial court erred in its February 16, 2023 order because it improperly extended the expiration of his formal probation to June 9, 2024. Armas presents several grounds for that contention, which we consider in turn.
A. Armas's Contention That Probation Was Not Summarily Revoked Between September 28, 2022 and February 16, 2023
Armas's first contention is that, contrary to the trial court's assumption, his formal probation was not summarily revoked during the 141 days between the filing of the September 28, 2022 petition and the final adjudication of that petition on February 16, 2023. He contends that, accordingly, the trial court erred in adding that 141-day period to the term of his formal probation.
We begin our analysis with the statutory provision governing summary revocation of probation. "At any time during the period of supervision of a person (1) released on probation under the care of a probation officer pursuant to this chapter, . . . if any probation officer . . . has probable cause to believe that the supervised person is violating any term or condition of the person's supervision, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring them before the court .... Upon rearrest . . . 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 . . . officer or otherwise that the person has violated any of the conditions of their supervision, or has subsequently committed other offenses, regardless of whether the person has been prosecuted for those offenses." (§ 1203.2, subd. (a).) The statute expressly states that "[t]he revocation, summary or otherwise, shall serve to toll the running of the period of supervision." (Ibid.) Applying this statutory provision, the trial court concluded that Armas's period of supervision on formal probation had been tolled when his probation was summarily revoked for the 141 days between September 28, 2022 and February 16, 2023. (See People v. Braud (2020) 56 Cal.App.5th 962, 969 (Braud) ["when the violation and reinstatement both occur during the probationary period, . . . a court may extend it by adding the tolled period of revocation"].)
Based on two aspects of the September 28, 2022 proceedings, Armas contends that his probation was not summarily revoked between September 28, 2022 and February 16, 2023, and therefore the trial court erred in concluding that the period of formal probation had been tolled.
First, Armas points out that the probation officer's September 28, 2022 petition, which alleged that Armas had violated the terms of his probation, had a preprinted "Order of the Court" section for the trial court to fill out and sign. The preprinted order contained several possible boxes for the trial court to select, one of which stated, "Probation is revoked." The trial court did not select the box next to "Probation is revoked[.]"
It is clear from our review of the preprinted order that the commissioner who handled the September 28, 2022 proceedings was not careful in filling it out. Specifically, the commissioner did not select the box stating, "Hearing on foregoing petition is set for . . ." even though the box in front of that item plainly should have been selected because the commissioner filled out the item by writing in a specific future hearing date to take place in a specific department.
Second, Armas points out that at the September 28, 2022 hearing, the trial court did not state on the record that it was summarily revoking his probation. Although it is clear from trial court's statements at the hearing that it had decided to keep Armas in custody with no bail, the trial court did not expressly mention that it had summarily revoked Armas's formal probation. Armas contends that the trial court's failure to mention summary revocation, together with the fact that the trial court did not select the box indicating "Probation is revoked" on the preprinted order at the bottom of the probation officer's petition, means that the trial court did not summarily revoke Armas's formal probation on September 28, 2022.
We reject Armas's argument. Despite the trial court's failure to expressly state at the September 28, 2022 hearing that Armas's probation was summarily revoked, such an order was implicit based on the fact that the trial court retained Armas in custody, refused to set bail, and set a hearing on the probation officer's petition. As our Supreme Court has explained, it is the act of"' "summary revocation" '" that"' "gives the court jurisdiction over and physical custody of the defendant" '" while the defendant is awaiting a hearing on a petition alleging violation of the terms of probation. (People v. Leiva (2013) 56 Cal.4th 498, 505.) Here, the trial court summarily revoked Armas's probation because it took physical custody of him without bail and set a hearing to adjudicate the probation officer's petition alleging a violation of the terms of probation.
Further, the minute order from the September 28, 2022 hearing states, "Court orders Formal Probation (Supervised) Revoked as of 9/28/2022." Although a minute order will not control when there is a conflicting oral pronouncement regarding sentencing issues (Farell, supra, 28 Cal.4th at p. 384, fn. 2), there is no conflicting oral pronouncement here. Instead, the trial court was simply silent about summary revocation at the September 28, 2022 hearing. As we have explained, despite the trial court's silence, summary revocation was implied based on the fact that Armas was retained in custody and the court set a hearing on the probation officer's petition. The minute order is therefore a valid reflection of the trial court's implicit ruling at the September 28, 2022 hearing, which summarily revoked Armas's probation.
In determining that the trial court did, in fact, summarily revoke Armas's probation on September 28, 2022, we further rely on the numerous subsequent minute orders between September 28, 2022, and February 16, 2023, which state that Armas's probation remained summarily revoked. We also rely on the trial court's statement, on the record, at a December 2, 2022 hearing that Armas's probation was summarily revoked at that time. As we have explained, the trial court made that statement in the course of questioning Armas's probation officer about the type of supervision that Armas was receiving during summary revocation.
Finally, although the trial court failed to select the box stating "Probation is revoked" on the preprinted order that it filed on September 28, 2022, we do not view that fact to be dispositive of whether probation was summary revoked." 'When . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence'" (People v. Smith (1983) 33 Cal.3d 596, 599.) Here, in light of the lack of care the trial court used in selecting the appropriate boxes on the preprinted order and the fact that Armas was retained in custody without bail while awaiting a hearing on the probation officer's petition, the minute order from the September 28, 2022 hearing is entitled to greater credence than the preprinted order on which the trial court neglected to select the box stating "Probation is revoked."
Based on the foregoing, we reject Armas's contention that his probation was not summarily revoked between September 28, 2022 and February 16, 2023. Therefore, in extending the expiration of Armas's formal probation, the trial court properly included that 141-day period of tolling.
B. The Period of Summary Revocation Due to the April 5, 2022 Petition Was Properly Included in the New Expiration Date
Armas next contends that the trial court erred in its February 16, 2023 order because, in calculating the new probation expiration date, it included the 157 days during which Armas's formal probation was summarily revoked as a result of the probation officer's April 5, 2022 petition. Armas contends that because the trial court did not extend the expiration date of his formal probation after ruling on the April 5, 2022 petition, it did not have the authority to do so after it ruled on the September 28, 2022 petition.
We reject the argument because it is based on an incorrect factual premise. As we have explained, the trial court stated on the record at the September 9, 2022 hearing that Armas's probation would expire in 498 days, i.e., on January 20, 2024. That new expiration date reflects the addition of the 157 days during which Armas's probation was summarily revoked between the filing of the April 5, 2022 petition and hearing on September 9, 2002. Thus, going into the hearing on February 16, 2023, Armas's formal probation had already been extended to January 20, 2024, and no further action from the trial court was required to effectuate that extension.
C. Armas Has Forfeited His Contention That the Trial Court Failed to Exercise Its Discretion at the February 16, 2023 Hearing
Armas's final contention is that the trial court erred because it extended his probation expiration date at the February 16, 2023 hearing without realizing that the extension was discretionary.
Case law establishes that "at a formal revocation hearing, if the trial court finds a violation, it has discretion to reinstate and extend the probationary term to account for the period of revocation." (People v. Ornelas (2023) 87 Cal.App.5th 1305, 1313, italics added.) "Although tolling for a summary revocation does not automatically extend a probation period, when a court reaches the second step of the revocation process-the formal hearing on the violation- . . . the court may choose to extend the probation period." (Braud, supra, 56 Cal.App.5th at p. 968.)
Armas argues that the two statements at the February 16, 2023 hearing indicate the trial court believed it was required to extend the term of probation. First, after defense counsel stated that Armas had only "a few more months" left on his term of probation, the trial court interjected, "Just want to interrupt you. All of the time that he was on a violation of probation . . . the time is tolled." Later, when making its ruling, the trial court stated, "Again, I indicate to you, Mr. Armas, all of the time that you've been on violation of probation where it hasn't been resolved, from the time the petition was signed, to the time that you're put back on probation, does not count towards your total time on probation. All of that just goes out the door, and your end date is recalculated. Keep that in mind."
Armas contends that these statements establish that the trial court did not understand that the extension of Armas's probation expiration date was not automatic. Relying on the rule that "[a] court necessarily abuses its discretion when it fails to exercise its discretion at all" (People v. Choi (2021) 59 Cal.App.5th 753, 766), Armas argues that the trial court erred in not exercising its discretion, and we should remand for the trial court to do so.
We reject Armas's argument because he forfeited it by failing to raise the issue with the trial court at the February 16, 2023 hearing. "In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a" 'discretionary sentencing choice[ ]." '" (In re Sheena K. (2007) 40 Cal.4th 875, 881, italics added.) "The sentencing hearing is, in general, the proper time for a defendant to assert all available procedural and factual contentions relating to the trial court's sentencing choices." (People v. Trujillo (2015) 60 Cal.4th 850, 861.) "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing." (People v. Scott (1994) 9 Cal.4th 331, 353.) Based on these principles, if defense counsel believed, based on the trial court's statements at the February 16, 2023 hearing, that the trial court was unaware of its discretion, counsel was required to bring that issue to the attention of the trial court and to advocate for an exercise of discretion in Armas's favor. Because that did not occur, Armas may not raise the issue for the first time on appeal.
DISPOSITION
The February 16, 2023 order reinstating formal probation is affirmed.
WE CONCUR: DO, J., BUCHANAN, J.