From Casetext: Smarter Legal Research

People v. Campuzano

Court of Appeal of California
Sep 19, 2008
No. E044629 (Cal. Ct. App. Sep. 19, 2008)

Opinion

E044629

9-19-2008

THE PEOPLE, Plaintiff and Respondent, v. DAVID DIAZ CAMPUZANO, Defendant and Appellant.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Deborah La Touche, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


Defendant and appellant David Diaz Campuzano appeals the trial courts finding that he violated condition No. 4 of his probation. He argues the trial courts finding should be reversed because there was insufficient evidence he willfully failed to report to his probation officer. In addition, defendant contends the trial court erred when it imposed restitution fines at the time of sentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement, defendant pled guilty to corporal injury to a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)); unlawful sexual intercourse with a minor (§ 261.5, subd. (c)); and criminal threats (§ 422) (counts 2, 3, & 4). Count 1, a kidnapping charge (§ 207, subd. (a)), was dismissed as part of the plea agreement. The facts of the underlying offenses are detailed in the probation reports but are not relevant to our analysis of the issues raised in the appeal.

All undesignated statutory references are to the Penal Code.

On February 22, 2007, the trial court withheld pronouncement of judgment and granted defendant supervised probation for a period of three years, subject to various terms and conditions, including service of 270 days in county jail. During the sentencing hearing, defense counsel indicated defendant was "facing potential deportation."

On July 15, 2007, defendant was released from jail and placed in the custody of the United States Border Patrol. He was then deported to Mexico on August 1, 2007. On August 23 2007, defendants probation officer filed a petition to revoke probation alleging defendant had failed to report to and cooperate with his probation officer as required. Shortly thereafter, on August 25, 2007, defendant was arrested in the Los Angeles area for receiving stolen property.

On November 2, 2007, the court held a formal probation revocation hearing and found defendant violated condition No. 4 of his probation by willfully failing to report to his probation officer. As a result, the court terminated probation and sentenced defendant to the middle term of three years in state prison on count 2. On counts 3 and 4, the trial court imposed a prison term of two years for each offense but then ordered those terms to be served concurrently with the three-year term on count 2.

DISCUSSION

Revocation and Termination of Probation.

Relying on People v. Galvan (2007) 155 Cal.App.4th 978 (Galvan), defendant argues there is insufficient evidence he violated condition No. 4 of his probation by willfully failing to report to his probation officer. The defendant in Galvan was required as a condition of his probation to contact his probation officer within 24 hours after his release from county jail. (Id. at p. 980.) If the defendant left the country, the conditions of his probation also required him to report to the probation officer within 24 hours and to present documentation showing he was legally in the United States. (Id. at p. 981.) Following his release from county jail, the defendant was deported to Mexico, but then arrested again in the United States. (Ibid.) The trial court terminated the defendants probation "because he failed to report within 24 hours of his release from county jail, and because he subsequently failed to report within 24 hours of his reentry into the United States." (Id. at p. 982.) The appellate court concluded the termination of the defendants probation was an abuse of discretion. (Id. at p. 985.) First, the defendants failure to report within 24 hours of his release was not willful, because the condition required an appearance in person, and the defendants deportation made it impossible for him to report in person. (Id. at pp. 983-985.) Second, the record did not contain any evidence showing when the defendant reentered the United States or how long he had been here prior to his arrest. As a result, the appellate court concluded there was no evidentiary basis for revoking probation based on the defendants failure to report and produce documentation within 24 hours of his reentry. (Id. at pp. 982-983.)

Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Under section 1203.2, subdivision (a), probation may be revoked or terminated "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 his or her probation . . . ." An appellate court will not disturb the trial courts decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.) "A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation." (Galvan, supra, 155 Cal.App.4th at p. 983.) To determine whether a probationer has violated the terms and conditions of probation, trial courts apply a preponderance of the evidence standard of proof. (Rodriguez, supra, 51 Cal.3d at p. 447.)

Here, the petition to revoke defendants probation alleged he violated condition Nos. 4 and 5. Condition No. 4 required defendant to "[r]eport to the probation officer in person immediately upon release from custody and thereafter once every fourteen (14) days or as directed." Condition No. 5 stated defendant shall "[c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer." The trial court found defendant willfully violated condition No. 4. The court then stated defendant was "probably in violation" of condition No. 5 but declined to make a formal finding because it concluded the violation of condition No. 4 was "more clear."

The petition also alleged defendant violated condition No. 23, which required him to enroll in and successfully complete a domestic violence treatment program and show proof of enrollment to the probation officer by August 15, 2007. The court found defendant did not willfully violate this condition because he could not have enrolled in a program while in custody or out of the country and had only been back in the country about a week prior to his rearrest.

In reaching its determination, the trial court stated in pertinent part as follows: "[Defendant] was released from custody when he was deported on August 1st, 2007, and he was in Mexico. Obviously he could not report in person while he was in the country of Mexico, but by his own admission he returned to the United States one week before he was arrested in Los Angeles. The only reasonable interpretation of [condition No.] 4 would be that if he were unable to report to probation immediately upon his release from custody, that he do so immediately upon his return to the United States. Even if I interpret one week . . . to mean five days, he had five days where he was in the United States and failed to report to probation and that would have been a willful failure on his part."

Based on the foregoing, it is apparent the trial court did not base its revocation decision on defendants failure to report to his probation officer immediately upon his release from county jail. Rather, the trial court recognized defendants deportation to Mexico prevented him from reporting to his probation officer "in person immediately upon release from custody." Thus, the only issue is whether the trial court abused its discretion when it concluded defendant was in violation of condition No. 4 because he failed to timely report to his probation officer after he reentered the United States following his deportation.

Defendant also suggests the trial court could not rely on his failure to report to his probation officer after he reentered the United States because the revocation petition did not allege a violation of condition No. 2. Condition No. 2 states defendant shall "[n]ot remain in, or reenter, the United States without proper written authorization by the Department of Homeland Security—Bureau of Citizenship and Immigration Services. Upon reentering the United States, report forthwith to the probation officer with written proof of said authorization." Defendant suggests condition No. 2 could not be read to require him "to report immediately upon his return."

In our view, the trial court correctly interpreted condition No. 4 to require defendant to report to his probation officer immediately in the event he returned to the United States following his deportation. The trial courts interpretation of condition No. 4 is not only fair and reasonable but is aligned with general contract principles. Under general contract principles, "[t]emporary impossibility usually suspends the obligation to perform [a contract] during the time it exists." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 833, p. 921.) Once defendant reentered the United States, the circumstances impeding his compliance with condition No. 2 no longer existed and he had an immediate obligation to comply.

Even if it could be said condition No. 4 is ambiguous in this regard, we could not disagree with the trial courts conclusion that it required defendant to report immediately to his probation officer if he returned to the United States. " ` "[I]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.] "The mutual intention to which the courts give effect is determined by objective manifestations of the parties intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]" [Citations.] " (People v. Shelton (2006) 37 Cal.4th 759, 767.)

Here, there is no doubt about the mutual intent of the parties based on the surrounding circumstances. For example, as noted above, condition No. 2 required defendant to "report forthwith" to his probation officer if he reentered the United States following deportation and to provide the probation officer with documentation showing he was legally authorized to be here. In anticipation of defendants impending deportation, the trial court read condition No. 2 to defendant on the record during his sentencing hearing. Defendant indicated he read the applicable terms and conditions and accepted probation on those terms. Also as noted above, condition No. 5 required defendant to "[c]ooperate with the probation officer in a plan of rehabilitation . . . ." In sum, this evidence clarifies the mutual intent of the parties at the time probation was granted.

We also reject defendants argument that there is insufficient evidence to support the trial courts conclusion defendant willfully failed to report to his probation officer, in violation of condition No. 4, after he reentered the United States following his deportation. First, this case is distinguishable from Galvan in that the record does contain some evidence of the length of time defendant was in the United States, out of custody, without reporting to his probation officer. Defendants probation officer testified she spoke to defendant about the alleged probation violations, and "[h]e admitted that he had returned to the United States illegally to obtain his residential alien card" and had been here "a week or something before he was arrested." When he was asked for an explanation as to why he was not able to report, defendant "stated he was deported."

Defendant claims "there is no evidence as to when [defendant] reentered the United States before his arrest on August 25, 2007." His reason is that the probation officers testimony is incompetent because she was "going off [her] memory" as to what defendant told her. Essentially, defendants argument is that we should overturn the trial courts determination that the probation officers testimony was credible. However, "[d]eferential review is particularly necessary when, as here, the factual determination depends in part on judging a witnesss credibility," and we must uphold such a determination if it is supported by substantial evidence. (People v. Carpenter (1999) 21 Cal.4th 1016, 1040.) " `When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . . " (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, quoting Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) "We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 469.)

As noted above, the burden of proof in a probation revocation hearing is a preponderance of the evidence. Defendants own statement is sufficient to prove he willfully violated condition No. 4 of his probation, because he was in the United States out of custody for about a week without making any attempt whatsoever to report to his probation officer. We therefore conclude the record contains sufficient evidence to support the trial courts determination defendant willfully violated condition No. 4 of his probation, and the trial court did not abuse its discretion in terminating defendants probation and imposing a prison sentence.

Restitution

Defendant contends and the People concede that the trial court made three separate but related computational or clerical errors when it imposed restitution fines at his initial sentencing on February 27, 2007, and on November 2, 2007, when it revoked and terminated probation. We agree.

"It is, of course, important that courts correct errors and omissions in abstracts of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We have authority to grant requests on appeal to correct a clerical error in an abstract of judgment. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075.) We address these errors in chronological order.

On February 27, 2007, when the court granted probation at defendants initial sentencing hearing, it ordered defendant to pay a restitution fine in the amount of $200, exclusive of administrative fees. Although the record is silent, we presume this amount was imposed pursuant to section 1202.4, subdivision (b)(1). Section 1202.4, subdivision (b)(1), requires the court to impose a restitution fine of at least $200 when a person is convicted of a felony. On November 2, 2007, when the court revoked and terminated probation, it ordered defendant to pay a restitution fine of $220 pursuant to section 1202.4. In other words, without explanation or justification, the court increased the restitution fine to be paid under section 1202.4, subdivision (b)(1), from $200 to $220. Defendant appropriately seeks a reduction of the amount of the restitution fine payable pursuant to section 1202.4, subdivision (b)(1), from $220 back to $200.

Also on February 27, 2007, the court imposed a probation revocation restitution fine in the amount of $220 pursuant to section 1202.44. As provided in section 1202.44, this fine was originally stayed pending successful completion of probation. Section 1202.44 states that the probation revocation restitution fine must be imposed "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." Because the amount imposed pursuant to section 1202.4 was $200, the amount of the probation revocation restitution fine should also be $200, not $220. Therefore, defendant justifiably seeks a reduction of this fine from $220 to $200.

Next, on November 2, 2007, when the court revoked and terminated defendants probation, it imposed a parole revocation restitution fine of $220 pursuant to section 1202.45. Pursuant to section 1202.45, this fine was stayed pending successful completion of parole. However, similar to section 1202.44, section 1202.45 provides that the parole revocation restitution fine must be "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." Because the amount imposed pursuant to section 1202.4 was $200, the parole revocation fine should also be $200, not $220. As a result, defendant justifiably seeks a reduction of this fine from $220 to $200.

Based on the foregoing, we agree with the parties that the trial court minutes and the abstract of judgment should be amended to reflect the correct amount of fines imposed pursuant to sections 1202.4, subdivision (b)(1), 1202.44, and 1202.45.

DISPOSITION

The amount of restitution fines imposed pursuant to sections 1202.4, subdivision (b)(1), 1202.44, and 1202.45 shall be reduced from $220 each to $200 each. The Superior Court of San Bernardino County is directed to amend the minutes of February 27, 2007, and November 2, 2007, as well as the abstract of judgment, to reflect the correct amount of the fines and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur:

HOLLENHORST, J.

MILLER, J.


Summaries of

People v. Campuzano

Court of Appeal of California
Sep 19, 2008
No. E044629 (Cal. Ct. App. Sep. 19, 2008)
Case details for

People v. Campuzano

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID DIAZ CAMPUZANO, Defendant…

Court:Court of Appeal of California

Date published: Sep 19, 2008

Citations

No. E044629 (Cal. Ct. App. Sep. 19, 2008)