Opinion
B204807
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. RENATO CAUBOT, Defendant and Appellant.
Rachel Lederman, 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, Linda C. Johnson, Supervising Deputy Attorney General, and Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Renato Caubot appeals from the judgment entered following a court trial in which he was convicted of felonious assault and found to have inflicted great bodily injury on his victim during the commission of the offense. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) Defendant contends that the matter should be remanded for resentencing because the trial court failed to exercise sentencing discretion properly as a result of erroneously reading a diagnostic report and alternatively that trial counsel rendered ineffective assistance in failing to bring the error to the trial courts attention. We agree that the trial court failed to exercise its discretion properly and therefore do not discuss the ineffective assistance issue.
BACKGROUND
In 2004, Billy De Castro bought a car from defendant for $3,500, agreeing to make weekly payments. After about three months, De Castro decided he no longer wanted the car and asked if he could return it to defendant in exchange for half of the money he had already paid. De Castro got the impression that defendant agreed to this arrangement. On November 16, 2004, De Castro went to defendants apartment to return the car. While at the apartment, defendant came up behind De Castro and poured boiling water on the back of De Castros head and neck, causing severe injury. De Castro attempted to flee, but defendant grabbed De Castro and repeatedly hit him. De Castro eventually got away.
Defendant testified that he and De Castro were involved in a sexual relationship and that he had loaned his car to De Castro. On the date in question, he gave money to De Castro for what turned out to be six empty boxes that were supposed to contain laptop computers. Later that day, after defendant had put a pot of water on the stove to cook noodles, De Castro came to defendants apartment. Defendant was angry with De Castro and the two got into a physical altercation. During the altercation, defendant grabbed the pot and threw it at De Castro, not realizing at the time that it contained boiling water.
Following argument by counsel, defendant was found guilty. In stating its verdict, the court commented that defendants "credibility really suffers."
With respect to sentence, defense counsel asked for a 90-day diagnostic evaluation under Penal Code section 1203.03. The court agreed to make the referral but further commented: "But Ill tell you right now that hes looking at a lid from me of five years. That would be the low term of two years, because of no serious criminal record, plus the three-year enhancement of the 12022.7(a). [¶] That is the courts sentence, five years, plus restitution to the victim in this matter, whether it be medical expenses or the cash that he didnt recover from the automobile and/or missing work I believe he was out. [¶] Ill send it out for a diagnostic for 90 days. However, the court, even regardless of their recommendation — sometimes it follows it, and sometimes it does not, because I was privy to the evidence in this case."
"Put it this way, the court, Ill tell you right now, regardless of what the report states, will not give probation. It will not give probation."
"The only thing the court may recommend is that he do, while in state prison — maybe some kind of dual-diagnostic facility while hes in the state facility. [¶] No, thats a given, it will not be a probationary case."
"The court is going to send it out for a diagnostic. Its really discretionary upon the court, and the defense attorney has to agree to that, and theyre asking for that. Ill give him that, but more than likely, hes going to receive the five years on this. [¶] The only thing that that is going to help me with, when I sentence him to five years, which the court more than likely will do, is that I will set parameters as to what the state facility may want to concentrate on, and thats the only reason Im doing this."
The diagnostic report that was prepared by the Department of Corrections and Rehabilitation (CDC) consists of nine pages. The first two pages are in the form of a letter to the trial court from the associate warden. The letter states in part: "Due to a difference of opinion between the counselor and clinician, an administrative review was conducted. [Defendant] appears to be a suitable candidate for a grant of felony probation. This decision is in no way meant to minimize his crime. He should be made aware that his crime and conviction warrants a state prison sentence and any future unlawful conduct may result in a lengthy time in custody. [¶] . . . [¶] The administrative team at this facility is in agreement that [defendant] expressed remorse and appears to understand the gravity of his conviction and the consequences as a result of his actions. He regrets his behavior and the crime he committed. [¶] It is respectfully recommended that [defendant] be granted felony probation with strict guidelines attached."
The third through fifth pages of the report are a "psychological evaluation," which recommends probation, stating that "[i]n light [of defendants] minimal criminal history, he does not appear to be a threat to the community." The sixth through ninth pages of the report are an "institutional staff recommendation" that defendant be denied probation and sentenced to state prison.
When proceedings resumed upon receipt of the diagnostic report, the following colloquy ensued:
"The Court: People versus Caubot. [¶] We have [defense counsel] on behalf of [defendant]. [¶] I take it youve had a chance to look at [the] diagnostic that was generated here?
"[Defense Counsel]: Yes, Your Honor.
"The Court: All right. And you see that theyre recommending state prison in this matter?
"[Defense Counsel]: Yes. Well, its really interesting. The first page, it says that theyre recommending felony probation, and then on the second one, theyre recommending state prison. [¶] I would argue that he, at this point, is no risk, and hes been in jail for a long enough time, and I would ask for a state prison suspended commitment and a grant of felony probation, with a state prison commitment — I mean with state prison over his head. [¶] I dont think that hes a serious risk to the community at this point, and I think that he has served a significant amount of time, and I dont think this would happen again. [¶] I would submit it based upon that.
"The Court: I appreciate your comments. I am familiar with this matter. I did have a hearing in this matter. I was interested to see what kind of comments and evaluations and recommendations were made by the — as a result of the 1203 diagnostic. [¶] Im inclined to follow the advice of the report and to impose the state prison time. I think had they recommended a probationary period, I seriously would have considered that, with psychological treatment. I dont think that [defendant] is suitable as a candidate for probation. [¶] Im, therefore, going to impose the time that the court indicated on the date that the defendant was last here, and that was a period of five years, and that is five years, the low term of two years, plus an additional three years pursuant to 12022.7(a)." (Italics added.)
DISCUSSION
Defendant, quoting the trial courts comment italicized above, contends that "[b]ecause the trial court misconstrued the CDCs recommendation, there was no sound or informed exercise of discretion and the matter [should be] remanded for a new sentencing hearing." We agree.
"Defendants are entitled to sentencing decisions made in the exercise of the `informed discretion of the sentencing court. [Citations.]" (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) A diagnostic study under Penal Code section 1203.03 provides the trial court with information on which to base discretion. (See People v. Vargas (1975) 53 Cal.App.3d 516, 532-533.) Here, the trial court apparently misperceived the diagnostic report to have recommended against probation when, in fact, only the "institutional staff recommendation" made that recommendation, and the "psychological evaluation" and the "administrative team" were of the opinion that probation was appropriate.
The Attorney General argues that, given the trial courts statements before ordering the diagnostic examination that it intended to sentence defendant to state prison and defense counsels reference at the time of sentencing to the conflicting recommendations within the report, defendant has failed to "affirmatively demonstrate[] that the trial court considered erroneous or factually incorrect information." But consideration of erroneous information is not the issue. Rather, for reasons which are not apparent from the record and about which we can only speculate, in sentencing defendant the trial court voiced an erroneous interpretation of the information in the diagnostic report. Based on the trial courts erroneous belief that the diagnostic report recommended state prison and the courts further comment that it would have seriously considered granting probation had probation been recommended, the matter should be remanded for resentencing.
DISPOSITION
The judgment is affirmed and the matter is remanded for resentencing.
We concur:
ROTHSCHILD, J.
TUCKER, J. --------------- Notes: Judge of the Orange County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.