Opinion
E052748 Super.Ct.No. RIF10000369 Super.Ct.No.RIF151890 Super.Ct.No.RIF149642 Super.Ct.No.RIF149800
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. SUSAN RENE BRUMLEY, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed with directions.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
After receiving an indicated sentence, defendant and appellant Susan Rene Brumley pled guilty to: two counts of transporting or distributing methamphetamine (Health & Saf. Code, § 11379, subd. (a), case No. RIF151890, count 1 & case No. RIF149642, count 3); taking a vehicle without consent of the owner (Veh. Code, § 10851, subd. (a), case No. RIF149642, count 1); two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378, case No. RIF149642, count 2 & case No. RIF149800, count 1); possessing vicodin (Health & Saf. Code, § 11350, subd. (a), case No. RIF149800, count 2), possessing marijuana (Health & Saf. Code, § 11357, subd. (b), case No. RIF149800, count 5); and forgery (Pen. Code, § 476, case No. RIF10000369, count 1). As to each of case Nos. RIF151890, RIF149642, and RIF149800, she admitted a prison prior enhancement (Pen. Code, § 667.5, subd. (b)) based upon a conviction from 2006. She also admitted an on-bail enhancement (Pen. Code, § 12022.1, subd. (b)) in case No. RIF151890. The trial court imposed an aggregate prison term of seven years, but suspended execution of the sentence and placed defendant on probation with the condition that she complete a one-year drug treatment program. Subsequently, probation was revoked; the trial court executed the prison sentence but modified it to an aggregate term of six years eight months because the sentence was defective as originally imposed. Defendant contends the trial court abused its discretion by revoking her probation and imposing the prison sentence. In addition to disputing defendant's contention, the People challenge the reduction of the prison sentence from the original term of seven years. We affirm.
BACKGROUND
Defendant pled guilty on March 23, 2010; before accepting defendant's plea, the trial court stated: "The entire purpose of what we're doing here today is to give you a chance to clean up, what has been represented to me as a very, very long history of drug abuse and crimes and recidivous activity associated with drug use. But this is—I want you to understand this is the last chance that you will get. It's kind of a one-shot, we're all collectively keeping our fingers crossed that this is going to work for you. And that old adage if you work the program, it will work for you. I think it's very, very true for you in this situation. And I still have a little bit of a hesitation because of the fact you already tried one of these programs and it didn't work."
Defendant was immediately sentenced, but the trial court suspended execution of the sentence and placed defendant on probation. The trial court set the transporting or distributing methamphetamine charge from case No. RIF151890 as the principal charge, imposed the upper term of four years in prison, and then added two years consecutive for the on-bail enhancement and one year consecutive for the prison prior enhancement. It then imposed the remaining sentences concurrent, with the exception of the prison priors, which it imposed and then stayed pursuant to Penal Code section 654. It also imposed the mandatory court security fees (Pen. Code, § 1465.8) and facilities assessments (Govt. Code, § 70373).
Among the conditions of her probation were requirements that she complete a one-year treatment program and that she comply with the reasonable directives of her probation officer.
Defendant started a treatment program on April 8, 2010. On May 3, 2010, she left the program because she was having medical problems. She called her probation officer and informed him of her need to depart the program, stated that she would be able to reenroll once her issues were resolved, and was told to contact the probation department once her medical issues were resolved.
Defendant described the day she left the treatment program as follows: "I was real irritable, and they got onto me about something and I told them I didn't have to take this, or something like that. And I didn't feel good, and I had been bleeding since I been there, which was three weeks. . . . And it had just stopped for, like, a day or two, and I'd go back to bleeding. . . . [¶] . . . [¶] I remember when I left the program it was . . . 7 o'clock in the morning. And I went across the street, and I . . . went to sleep in one of those . . . little medians right there where you pull into the store there's a grassy area? I fell asleep there, just passed out cold." Later that day, she went to a medical clinic.
On June 1, 2010, defendant walked into the probation department's office and "said she was still undergoing medical care, and she was not enrolled in a program." Shortly thereafter, the probation department sent defendant a letter requesting she come in for an office visit on June 28, 2010; however, she did not show up for the appointment. She testified she had not received the letter, as well as a few other items of mail.
The probation officer contacted the Pasadena treatment program defendant had been enrolled in; defendant had not returned since she had left. The Anaheim and San Diego locations of the same treatment provider were contacted by the probation officer. Representatives of both locations had spoken with defendant, explained their intake procedures to her, and confirmed that she appeared to be a good fit for their program.
Defendant testified that she obtained medical clearance to return to the drug treatment program in August or September, but then needed to await additional documentation to provide to the program. She said she failed to appear in court on October 5, 2010, because she was at the Anaheim program; however, they would not enroll her because she was wearing over-the-counter patches for craving control that she had been prescribed. She said she "couldn't go back to the one in Pasadena because the people that are in the program, when you walk off like that, they don't want one of the walk-offs coming back in."
Defendant's trial counsel contended, defendant "does have some justification in what happened to her, seven years suspended sentence for a woman who was trying to get treatment, who did have medical conditions and tried to address medical conditions that were severe."
The trial court then noted it did not have any medical information before it. Defendant's trial counsel then offered a document from a health agency and stated "it shows that on May 3rd of this year she did go see a doctor for her prolonged menstrual bleeding. And, basically, it talks about what was going on with her, what happened to her, she was in [the treatment provider], that she left because she was feeling tired and irritable. When she was in a six-month program, she just couldn't do the program because of a medical condition."
The trial court responded, "Well, I accept that. She sought medical treatment May 3rd. She was sentenced March 23rd. But more than three weeks after May 3rd, we start having progress hearings scheduled here in court. And between May 25th and today's date, there have been 14 continuances. The case print does not spell out the reasons, specific reasons, but what it does spell out and what is clear is that the defendant was directed to provide additional information justifying her continued absence from the program. And that wasn't done. [¶] But apart from any of that, she didn't report to the probation officer as directed. She is required regularly, under the terms of probation here, to report her progress. And if there is no progress, to explain why there is no progress. [¶] She has been in the system long enough to know that you've got to comply with the terms and conditions of probation. She's got a stack of cases here dating back to 2004. And goodness knows, there are probably cases even beyond that. [¶] So she's not unfamiliar with the system or unfamiliar with the requirement that she comply with all the terms and conditions of probation. [¶] What might sway me is if there's medical documentation showing continued consultations with medical personnel over these months—and I suspect no such documentation exists. Because if it did, it would have been in front of [the prior judge]."
Defense counsel indicated he did not have any such documentation in his file nor did he see such documentation in the medical documents he had brought to court. Defendant said she had turned in such documentation to the court as she got it, and that she "brought it in daily." The court then recessed so that counsel could review the trial court's files. The trial court found "no medical documentation in the court file. What is in the court file is what I was alluding to earlier, multiple continuance requests, some of them involving no appearance by the defendant."
The trial court found "by a preponderance of the evidence that the defendant has violated the terms of her probation." However, the trial court modified the suspended sentence so it could impose "a legally permissible sentence, and that's gonna work to [defendant's] benefit by a couple of months." Prior to imposing the suspended sentence, the trial court stated that it had "determined that the sentence handed down . . . on March 23rd . . . is legally defective. What [the prior judge] did was to impose the upper term of four years on Count 1 in that case. That's a violation of Health & Safety Code Section 11379. He ran the two-year out-on-bail enhancement consecutive, and he imposed an additional year consecutive for the prison prior, for a total of seven years.
In a sense, that's fine, as far as it went, but he is required—in order[] to have that two-year out-on-bail enhancement, in order to have that kick in, you have to run the subordinate term consecutive to the base term. That wasn't done. Everything else in all three of the other felony cases was run concurrent. [¶] So what I am going to do is modify his sentence." The trial court then unsuspended the sentence, but modified the sentence in case No. RIF151890 to reduce the base term to the midterm of three years from the upper term of four years. It then modified the sentence in case No. RIF149800 so that a consecutive one-third midterm of eight months was imposed for the first count, rather than the concurrent midterm that was in the originally imposed sentence. It then kept all the other counts in case Nos. RIF149800, RIF149642, and RIF10000369 the same. Including keeping "all previously ordered restitution fines, fees, and so on, as previously ordered."
VIOLATION
Defendant contends the trial court abused its discretion by revoking her probation because there was insufficient evidence that she willfully violated the terms of her probation. We disagree.
We review claims of insufficiency of evidence by examining " 'the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value.' " (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.)Because it is the trier of fact, and not the appellate court that must be convinced, " ' " ' " '[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See id. at p. 1299.) The scope of the evidence includes both the evidence in the record as well as "reasonable inferences to be drawn therefrom." (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.) In deciding whether substantial evidence supports the decision of the trier of fact, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the trier of fact to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
After less than a month in the treatment program, defendant left to address medical issues. After initially updating the probation department, she did not appear for an appointment. During the same period, the trial court was continuing her review hearings so she could justify her continued absence from a program. According to defendant, she was cleared to return to a program in August or September, and still having difficulty addressing medication or medical documentation concerns of the treatment provider in October when she was returned to custody. Accordingly, there was substantial evidence that defendant had violated her probation by failing to follow the reasonable directives of her probation officer and by failing to complete a one-year treatment program.
To the extent defendant contends her violations were not willful because of her explanations about not knowing of the probation appointment due to losing mail or being denied readmission to the treatment program due to difficulties with medications or medical documentation, we note that the trial court was not required to believe defendant. This is particularly so given the complete refutation of defendant's claims that she had been submitting medical documentation to the trial court. Thus, the trial court could permissibly have attributed no credibility to defendant's self-serving claims, even though they were not specifically rebutted.
REVOCATION
Defendant also contends the trial court abused its discretion by revoking her probation because the nature of any violation did not justify revocation of her probation. Again, we disagree.
Probation is a privilege, not a right (People v. Mancebo (2002) 27 Cal.4th 735, 754), which is granted as "an act of clemency" (People v. Howard (1997) 16 Cal.4th 1081, 1092).
A trial court may modify, revoke, or terminate probation if the probationer has violated any term or condition of probation "if the interests of justice so require." (Pen. Code, § 1203.2, subd. (b).) In considering whether to revoke probation, the court's inquiry is directed "to the probationer's performance on probation." (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) "Thus the focus is (1) did the probationer violate the conditions of his probation and, if so, (2) what does such an action portend for future conduct?" (Ibid.) The trial court is vested with "broad discretion in deciding whether to continue or revoke probation." (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.) " '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .' " (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) "We will uphold a trial court's sentencing determination where it is supported by substantial evidence. [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 917.)
Defendant has a long history of abusing drugs and committing crimes. Despite having previously failed a treatment program, in an act of clemency, the trial court granted defendant "one-shot" at probation with the requirement that she complete a drug treatment program. However, defendant failed to comply with the terms of her probation by following the directive of her probation officer to come in for an appointment; she also did not promptly get herself readmitted into the treatment program. Compliance with reasonable probation officer directives is required for any successful probation program, and resolution of defendant's drug problem through treatment was the reason she was given an opportunity at probation. Accordingly, the trial court was within its discretion to revoke her probation.
MODIFICATION
The People contend the trial court denied them their benefit from defendant's plea and did not have to modify the sentence due to the on-bail enhancement. Assuming that the People may raise this issue without filing a cross-appeal, they are wrong on both accounts. Defendant's plea was to the trial court's indicated sentence and was not part of a plea agreement for which the People would have a contractual right to the benefit of their bargain. Furthermore, when an on-bail enhancement applies, the sentences for the primary and secondary offenses must be imposed consecutively. (Pen. Code, § 12022.1, subd. (e).) Thus, the originally imposed sentence was unauthorized and was "subject to judicial correction when it ultimately came to the attention of the trial court." (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.)
MULTIPLE ENHANCEMENTS FOR THE SAME CONVICTION
Although not raised by the parties, we note that the all of the prison prior enhancements (Pen. Code, § 667.5, subd. (b)) were predicated upon the same conviction.
"Once the prior prison term is found true . . . the trial court may not stay the . . . enhancement, which is mandatory unless stricken. [Citations.]" (People v. Langston (2004) 33 Cal.4th 1237, 1241.) "Irrespective of whether a defendant's various sentences on multiple convictions are imposed so as to run consecutively or concurrently, section 667.5, subdivision (b) enhancements 'do not attach to particular counts.' To the extent that defendant had suffered only one 'prior prison term served,' only one section 667.5, subdivision (b) enhancement should have been alleged by the People and found true and imposed by the trial court." (People v. Smith (1992) 10 Cal.App.4th 178, 182-183 [Fourth Dist. Div. Two].) While Smith dealt with two enhancements imposed in a single case, the analysis remains applicable when a defendant is sentenced to a determinate sentence on convictions from multiple cases. Under Penal Code section 1170.1, "enhancements for prior convictions . . . are added just once as the final step in computing the total sentence" (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on an unrelated point in People v. Ewoldt (1994) 7 Cal.4th 380, 401), and the sentencing procedures apply regardless of the number of proceedings, i.e., case numbers, under which a defendant is being sentenced (Pen. Code, § 1170.1, subd. (a)). (See generally, People v. Williams (2004) 34 Cal.4th 397, 402 ["trial court must impose a sentence enhancement for a prior felony conviction . . . only once, regardless of the number of new felony offenses"].)
Defendant was sentenced for convictions arising under multiple cases that collectively contained three prison prior enhancements all predicated on the same conviction. The trial court imposed the prison prior enhancement in case No. RIF151890, but then imposed and stayed the prison prior enhancements in case Nos. RIF149642 and RIF149800. However, prison prior enhancements may not be stayed; instead, the two duplicate enhancements should have been stricken as only one prior prison term underlay the three enhancements. Accordingly, we will modify the judgment.
CLERICAL ERROR
The December 14, 2010, sentencing minute order for case No. RIF151890 states: "Fee suspended in the amount of $100.00 for court costs [¶] Fee suspended for Criminal Conviction Assessment fee in amount $30.00 [¶] Court Fee Security in the amount of $30.00 suspended. [¶] Reason fine suspended: Court order." However, the trial court had orally pronounced, "all previously ordered restitution fines, fees, and so on, as previously ordered." We have the inherent power to correct clerical errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order correction of the sentencing minute order.
DISPOSITION
The judgment is modified to strike the prison prior enhancements (Pen. Code, § 667.5, subd. (b)) imposed and stayed in case Nos. RIF149642 and RIF149800. The superior court clerk is directed to: (1) prepare minute orders for case Nos. RIF149642 and RIF149800 reflecting the modification of the judgment to strike the prison prior enhancements; (2) delete the following from the December 14, 2010 sentencing minute order for case No. RIF15180: "Fee suspended in the amount of $100.00 for court costs
Fee suspended for Criminal Conviction Assessment fee in amount $30.00 [¶] Court Fee Security in the amount of $30.00 suspended. [¶] Reason fine suspended: Court order"; and (3) prepare a single new abstract ofjudgment reflecting the single judgment, as modified, that resolved all four cases. The superior court clerk is then directed to forward certified copies of the new minute orders in case Nos. RIF149642 and RIF149800, the corrected December 14, 2010 sentencing minute order for case No. RIF15180, and the new abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
CODRINGTON
J.