Opinion
C086202
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. SERGIO E. BECERRA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11CR18377-01)
In 2017, the trial court found that Sergio E. Becerra had violated the terms of his mandatory supervision. On appeal, defendant requests that we reduce his underlying conviction of transporting methamphetamine to misdemeanor possession, remand for resentencing, and strike a $200 probation report preparation fee. He also contends there was insufficient evidence to support the trial court's finding that he had violated the terms of his mandatory supervision by failing to timely notify the probation department of his changed residence. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2011, defendant pleaded guilty to transporting methamphetamine (Health & Saf. Code, former § 11379, subd. (a); Stats. 2011, ch. 15, § 174, p. 326) and admitted a prior narcotics-related conviction, namely, a 2008 conviction under Health and Safety Code former section 11378 (Stats. 2001, ch. 841, § 6, p. 6870) (see Health & Saf. Code, former § 11370.2, subd. (c); Stats. 1998, ch. 936, § 1, p. 6846). Defendant admitted during the plea hearing that he knowingly possessed the methamphetamine while he was driving his father's car. The parties further stipulated that the amount was for personal use. The trial court suspended imposition of sentence and placed defendant on probation for five years. (Pen. Code, § 1210.1.) As part of his plea, defendant waived his right to appeal. As a condition of probation, defendant was to pay a $200 presentence investigation report fee. (§ 1203.1b.)
Undesignated statutory references are to the Penal Code.
Between February 2012 and September 2015, defendant admitted to violating probation five times, and the trial court reinstated probation five times, including in October 2013. During the October 2013 hearing, the trial court ordered five years' formal supervised probation, with 120 days in county jail. The trial court also imposed various fees and fines but waived a $200 presentence investigation report fee because no report had been prepared.
In August 2016, a petition for revocation of probation was filed alleging defendant pleaded guilty in June 2016 to violating Health and Safety Code section 11364. It was also alleged that defendant violated Health and Safety Code sections 11377, subdivision (a), and 11364 in July 2016. Defendant admitted the allegations in December 2016.
In January 2017, the trial court terminated probation and sentenced defendant to a split sentence, with two years six months in county jail and two years six months on mandatory supervision. (§ 1170, subd. (h).) The "previously ordered fines and fees" were imposed forthwith, including a $300 probation revocation fine. (§ 1202.44.) The abstract of judgment included a $200 presentence investigation report fee. (§ 1203.1b.) Defendant was remanded to serve his time. Included in defendant's terms of mandatory supervision was a provision requiring defendant to notify the supervising officer in writing within five days of any change of residence or employment status.
1. Defendant placed on mandatory supervision, but the trial court finds he has violated mandatory supervision
Defendant was placed on mandatory supervision in August 2017. In October 2017, a petition for revocation of mandatory supervision was filed alleging defendant had improperly failed to notify his supervising officer of a change in his residence.
During the contested mandatory supervision violation hearing in November 2017, Sacramento County Probation Officer Jehan Girgis testified that defendant had applied to transfer his probation from Amador County to Sacramento County. As part of the application, she went to defendant's reported address to verify it. Defendant was not there at the time. Defendant's girlfriend, who was at the residence, said defendant "does not always reside there." The girlfriend further told Girgis that defendant was unable to live there because he was not on the lease. Defense counsel objected the girlfriend's statements were hearsay, but the trial court stated it was "not taking it for the truth of the matter in this instance." Girgis left instructions for defendant to contact the probation department, but defendant failed to do so. Girgis was unable to ever verify that defendant was permanently residing at the address he had provided in Sacramento County.
Amador County Probation Officer Jennifer Mynderup testified that she reviewed with defendant the terms of his mandatory supervision. Mynderup testified that she had received an e-mail from the Sacramento County Probation Department that they had unsuccessfully attempted to verify defendant's address. The person with whom defendant was supposed to be living told Mynderup that defendant was not living there. The trial court denied defense counsel's hearsay objection to this statement, finding this evidence was admissible as to its effect on the listener. Mynderup filed the petition for violation.
The trial court overruled defendant's hearsay objection to this testimony. --------
Defendant testified that he was released from jail on August 9, 2017. He provided his girlfriend's address in Sacramento to the probation department because he considered himself to be living there. However, only people on the lease could live in his girlfriend's residence complex, and he was not on the lease. When the probation officer visited, defendant testified he was still "trying to get on the lease so [he] could stay there permanently." As of the hearing, he was still "in the process" of being added to his girlfriend's lease. Before his arrest, the only place he considered to be his residence was his girlfriend's home.
Defendant testified that the day the probation officer visited his girlfriend's residence, he had been staying with his daughter because she was pregnant. In October 2017, he stayed at his daughter's one time, for two nights in a row. Defendant testified he called the Sacramento County Probation Department but "nobody answered," so he left a message. No one ever called him back, even after he called a second time. Defendant never visited the Sacramento County Probation Department to verify his residence. Defendant testified he was arrested approximately nine days after the probation department had visited his girlfriend's residence looking for him.
The trial court sustained the petition, finding defendant had violated the terms of his mandatory probation by failing to provide a verifiable address. The trial court noted it would make this finding even without the girlfriend's statements about whether defendant was living there. The trial court ordered the remaining 30 months of defendant's sentence to be in county jail and remanded defendant. The abstract of judgment includes a $200 presentence investigation report fee. (§ 1203.1b.)
DISCUSSION
I
Defendant requests that we reduce his conviction to a misdemeanor, arguing his counsel was ineffective during the January 2017 sentencing hearing. According to defendant, defense counsel should have sought to have defendant's conviction vacated or reduced under the amended version of Health and Safety Code section 11379 which, as of 2014, criminalized transporting methamphetamine only if it was being transported for sale. Because defendant's appeal was taken from the trial court's November 2017 order of the court, rather than the court's January 2017 judgment and imposition of sentence, we agree with the People that defendant may not raise in this appeal his counsel's conduct during the January 2017 sentencing hearing. (§§ 1237, 1260; see People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["[i]n general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"]; see also People v. Mendez (1999) 19 Cal.4th 1084, 1094 ["[a] timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction' "].)
We likewise reject defendant's contention that his sentence is unauthorized and must be corrected. Because defendant failed to appeal from the imposition of judgment and sentence in January 2017, his sentence is final and unappealable for purposes of the amendments to Health and Safety Code section 11379. (See People v. Martinez (2018) 4 Cal.5th 647, 655 [amended Health & Saf. Code, § 11379 has no retroactivity provision and therefore "does not affect convictions that have become final"]; see also People v. Grzymski (2018) 28 Cal.App.5th 799, 802 [an unappealed split sentence is final for purposes of retroactivity 60 days after imposition], review granted Feb. 13, 2019, S252911; People v. Howard (1997) 16 Cal.4th 1081, 1095 [where a defendant fails to "contest the validity of the sentence the court imposed when granting probation[,] [n]o good reason exists for allowing [him] to do so once the court revoke[s] [his] probation"]; People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1326 [to allow a defendant to challenge his sentence once the court revokes probation would have the "absurd effect of encouraging defendants to violate the terms of their probation in the hopes of extending the probation term to take advantage of any beneficial changes in the law during the probationary period"].) For similar reasons, we reject defendant's request to strike the Health and Safety Code section 11370.2 enhancement (Grzymski, supra, at p. 802 [defendant not entitled to relief under amendments to Health & Saf. Code, § 11370.2 where he failed to timely appeal from his split sentence], review granted Feb. 13, 2019, S252911), and his invitation to treat this appeal as a petition for writ of habeas corpus.
II
Defendant challenges the revocation of his mandatory supervised release, arguing there is insufficient evidence that he failed to inform the probation officer of a change in his place of residence. According to defendant, the trial court reached its findings based on the statements of defendant's girlfriend, even though this evidence was only admitted for the effect on the listener, namely, the probation officers. Defendant argues the probation officers' state of mind was not at issue during the hearing and irrelevant as to whether defendant had violated mandatory supervision. Defendant further argues it was error to fail to produce the declarant from defendant's residence (i.e., his girlfriend) for cross-examination.
A trial court may revoke mandatory supervision when it has reason to believe the defendant has violated the terms of supervision. (§ 1203.2, subd. (a).) The prosecution must prove a violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) We review a trial court's decision to revoke mandatory supervision for substantial evidence. (People v. Buell (2017) 16 Cal.App.5th 682, 687.) A trial court's ruling is entitled to " 'great deference,' " and, on review, we " 'resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.' " (Ibid.)
We agree with the trial court that even without the statements from the declarant at defendant's listed residence, there is sufficient evidence to support the finding that defendant violated the terms of his mandatory supervision. Sacramento County Probation Officer Girgis testified that defendant was not present when she visited the address that he had provided in Sacramento County, and she was unable to otherwise verify his address. In addition, Girgis testified that defendant failed to get in touch with the Sacramento County Probation Department. Also, defendant testified that he was not on his girlfriend's lease, and only people on the lease were allowed to live in his girlfriend's residence complex. Under the circumstances, we find substantial evidence supported the trial court's conclusion that defendant had violated mandatory supervision by failing to notify the probation department of his changed residence within the required time period.
III
Defendant challenges the $200 fee for a presentence investigation report, arguing the trial court waived the fee in October 2013. (§ 1203.1b.) Defendant further argues there was no such report prepared in this case.
The trial court imposed a $200 presentence investigation report fee as a condition of defendant's probation in August 2011. (See former § 1203.1b [permitting the imposition of a fee for a presentence investigative report, even if defendant is ordered on probation].) Defendant failed to appeal from that condition and has thus forfeited any challenge to this $200 fee. (See People v. Ramirez, supra, 159 Cal.App.4th at p. 1421 ["[i]n general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"].)
Although the trial court declined to impose an additional presentence investigation report fee when it reinstated probation in October 2013, the trial court imposed all previously ordered fines and fees when it sentenced defendant in January 2017. Because the $200 presentence investigation report fee was previously ordered, it is properly included in the December 2017 abstract of judgment.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: RAYE, P. J. BLEASE, J.