Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FMB03786 Rodney A. Cortez, Judge.
Allison H. Ting, 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, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Following his guilty plea to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), defendant Gerald Wayne Chance was twice granted probation, which was finally revoked and he was sentenced to prison for four years. He appeals, claiming the trial court violated California Rules of Court, Rule 4.435(b) and abused its discretion in imposing the upper term. Putting aside all issues of waiver, forfeiture and estoppel, we reject his arguments on their merits and affirm the judgment.
The facts of the crime are irrelevant to this appeal.
Procedural Facts
On August 24, 2000, defendant pled guilty to one of two counts charging him with inflicting corporal injury on his cohabitant, for which the sentence range was 2, 3 or 4 years in prison. As part of the plea bargain, the prosecutor agreed that defendant would be granted probation with the terms that he serve 120 days in county jail, complete a 52-week batterers’ program and have no contact with the victim. In addition, defendant waived the right to withdraw his plea and the other count was to be dismissed. Defendant executed a Cruz waiver, which provided, “ . . . I understand I have an absolute right under California law to withdraw my plea if the court, for any reason, does not follow the plea bargain agreement. I also understand that I can not receive any additional penalty or punishment for any subsequent failure to appear or any new offense unless I am properly charged and convicted of such an offense. I understand and agree as part of this plea bargain agreement to be released upon my own recognizance and to waive these rights to the extent that if: [¶] a. I fail to report to the probation department as ordered by the court [¶] b. I fail to keep any appointments set by the probation department [¶] c. I fail to appear in court for sentencing, or any other date set by the court [¶] d. I violate any law (excluding infractions) between today and the date of sentencing [¶] . . . [¶] f. Then, I agree the court will no longer be bound by this plea bargain and I would not have any right to withdraw my plea. I further understand and agree that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.” Defendant was ordered to appear for sentencing on October 6, 2000. A probation report, listing the terms and conditions of defendant’s probation, was prepared. It recommended a three year period of probation.
Shockingly, no reporter’s transcript for the taking of the plea exists.
People v. Cruz (1988) 44 Cal.3d 1247 (Cruz).
The change of plea form does not specify the length of probation and, of course, since we do not have the transcript of the taking of the plea (see fn. 1, ante, p. 2), we have no idea what defendant was told, if anything, about the length of his probation when he pled.
Defendant did not appear in court on October 6, 2000 and his OR release was revoked and a bench warrant was issued. He did not appear again until April 2005, after he had been arrested during a routine traffic stop. The probation officer recommended that the 200 hours of community service which had been provided for as a proposed term of defendant’s probation in the probation report be increased to 400 hours and the length of his probation be expanded to five years.
On May 6, 2005, the court “with[e]ld . . . pronouncement of judgment” and granted supervised probation for five years, with terms and conditions as provided for in the probation report, as amended by the Interoffice Memo. Defendant was ordered to appear a year from then with proof of completion of his 400 hours of community service, as well as the remaining probation terms. Defendant agreed to the terms and conditions.
Defendant appeared a year later and asked the court for more time to complete his community service, the batterers’ program and pay what was remaining of his restitution fine and cost of the program. The court gave defendant until May 24, 2007 to accomplish these things and set a review for July 6, 2006 to show the court his progress. The court warned defendant that if he had not accomplished what he should have by that date, the court would modify the terms of his probation or take defendant into custody. However, on July 6, 2006, the matter was continued to August 17, when it was taken off calendar.
On February 13, 2007, a petition to revoke defendant’s probation was filed, alleging that defendant had violated a few of its terms. On February 27, defendant admitted violating one of the terms, i.e., not associating with someone who has violated the law. The court granted the petition and revoked defendant’s probation. The court set pronouncement of judgment for March 15, 2007. Defendant agreed that if he violated the terms of his OR release pending pronouncement of judgment, when he appeared for it he could be sentenced to the upper term in prison without a jury determination of factors justifying that term. The prosecutor promised that if defendant abided by the terms of his OR release and appeared for pronouncement of judgment as ordered, it would dismiss the subsequent case that had been filed against defendant. The court stated that it was its intention that if defendant abided by the terms of his OR release and appeared for pronouncement of judgment as ordered, that it would modify the local custody term of his probation to 180 days and if he successfully completed the In Roads program, he could petition to have the remaining custody time waived. Additionally, defendant would be continued on probation and a condition would be added that he have no negative contact with the person with whom defendant admitted associating as a violation of his probation.
He was representing himself at the time.
Those terms were that defendant not have contact with the person he admitted associating with, which caused his probation to be revoked, that he violate no law and that he appear for pronouncement of judgment on March 15, 2007.
It was also for inflicting corporal injury on a cohabitant.
Defendant went into custody on May 10, 2007, and was released from jail about a month later (probably due to overcrowding).
Pronouncement of judgment was continued until May 10, 2007, at which time the court revoked defendant’s probation, reinstated it and modified the number of days of local time he was to serve and ordered that defendant participate in the In Roads program. The subsequent case against defendant was dismissed.
Why defendant considers this the date he “was actually sentenced” and the date his Cruz waiver expired (he doesn’t say whether it was the August 2000 or the February 2007 Cruz waiver) is beyond us. On May 10, 2007, defendant’s probation was revoked and reinstated with a modification and an addition to the terms. This was no more a “sentence” than when probation was originally granted in May 2006. In our view, the August 2000 Cruz waiver “expired” when defendant appeared in court on May 6, 2005 and was granted probation and the February 2007 Cruz waiver expired on May 10, 2007 when defendant’s probation was revoked and reinstated with a modification and an addition to the terms. Thus, the People’s argument that the August 2000 Cruz waiver was still in effect when defendant was sentenced to prison in March 2008, and this justified the imposition of the upper term is not persuasive. A Cruz waiver is designed to insure the appearance of defendant at the pronouncement of judgment. Defendant did not appear for the October 2000 pronouncement of judgment, which was the objective of the August 2000 Cruz waiver, but when he did appear in May 2005, instead of being sentenced to prison, which would have been entirely proper under the Cruz waiver, the court granted him probation. Likewise, the February 2007 Cruz waiver was directed at defendant’s appearance for pronouncement of judgment on March 15, 2007, which defendant accomplished. Once again, he was granted probation, i.e., probation was revoked, but reinstated. Our opinion in People v. Vargas (2007) 148 Cal.App.4th 644, upon which the People rely, did not involve, as here, two different grants of probation between the Cruz waiver and the ultimate sentencing to prison, therefore, it is not dispositive of this issue.
See footnote 6, ante, page 5.
On October 15, 2007, a second petition to revoke defendant’s probation was filed. Following a contested hearing, the court determined that defendant had violated seven of the terms of his probation and it revoked his probation. The probation officer had recommended defendant be imprisoned “[given his] fail[ure] to appear . . . for sentencing on 10/06/00 . . . and the significant violations alleged in the amended petition dated 1/17/08[.]” Finding there were no factors in aggravation, the report recommended the lower term be imposed. However, at the contested hearing, the probation officer amended his recommendation to the midterm because defendant had previously violated a term of his probation.
Specifically, defendant failed to: 1) report to his probation officer as directed, 2) cooperate with him in a plan of rehabilitation and follow his reasonable directives, 3) seek and maintain gainful employment or attend school, and keep his probation officer informed of his employment or educational status, 4) keep the probation officer informed of his place of residence within 24 hours of any change and/or provide written authorization to the Post Office to forward mail to a new address, 5) not associate with known convicted felons or anyone actively engaged in criminal activity, 6) perform 400 hours of community service, and 7) successfully complete the batterers’ program.
The probation officer explained that he had thought that the court had merely modified a term of defendant’s probation, but now he knew defendant had been found to be in violation.
Defense counsel argued that the midterm was appropriate, asserting that defendant’s violations were of a relatively minor nature and that was what the probation officer had recommended. At no time did counsel assert that defendant could not base its decision on the appropriate term on facts that occurred after any particular date. The prosecutor responded that the upper term was appropriate, citing defendant’s five-year absence after being ordered to appear for pronouncement of judgment in 2000, his violation in February 2007, and current violations. Again, defense counsel was silent on whether it was appropriate for the court to be considering all these facts in determining defendant’s sentence.
During defendant’s testimony at the contested hearing, defense counsel said to him, “[T]he primary . . . reason I wanted you to testify is to tell the judge why he should not give you the aggravated term as a penalty in this case, why he should not do that.”
The court imposed the upper term, saying, “. . . I wanted to give [defendant] an opportunity to not excuse his actions and not make an excuse for his actions, and each time that he would explain why he violated, then there was a reason and there was an excuse. And there was a point where he started to accept responsibility for his violation of probation but then it turned into an excuse. [¶] And then I turn and I look to his -- the minute orders and I see he FTA’d on this case several times dating back to April 21st of 2000 . . . and for whatever reason he was given the benefit of the doubt on April 14th, 2005, when he showed up. Five years he was in the wind. This is a person that should have learned that it’s important to follow the directions of probation, and he clearly has not gotten that message. [¶] His probation was modified in May [of 2005] where he was ordered to do 400 hours of community service. He did not complete all those hours. He was ordered to complete his domestic violence. He did not complete that. . . . [¶] To his credit he did not pick up any new criminal offenses, but he associated with a known felon. And [his] excuses are just that, they’re excuses without any reasonable basis.
Defendant asserts that the court imposed the upper term “based on . . . [inter alia] . . . the prior Cruz waiver from August 2000 [and] failures to appear between 2000 and 2005 . . . .” He goes on to assert that the former is not a valid basis for imposing the upper term. The court relied on defendant’s violation of his agreement with it to appear for sentencing in October 2000 only in the sense that he disappeared for almost five years, knowing that he faced the possibility of being sentenced to the upper term for doing so. Therefore, the court did not consider defendant’s violation of his August 2000 Cruz waiver as a separate factor justifying the imposition of the upper term. Nor did the court simply rely on the fact that defendant had violated this waiver and impose the upper term, as it could have in May 2005. By some miracle of leniency, which the court noted, defendant was not sentenced to prison after he was arrested on another matter in 2005 and brought before the court. Instead, he was granted probation. To the extent defendant asserts that his failure to appear for this period cannot properly be used as the basis for imposing the upper term, he is incorrect. In Harris, the court held, “[To hold that] . . . a later sentence upon revocation of the reinstated probation may not take into account events occurring between the original grant and the reinstatement . . . would seriously impede a court’s flexibility to deal effectively with the offender who, granted the ‘clemency and grace’ of probation in the hopes of achieving rehabilitation [citation] proves unable to abide by the conditions of that liberty the first time out.” (People v. Harris, (1990) 226 Cal.App.3d 141, 147 (Harris).) Defendant’s reliance on our opinion in People v. Carr (2006) 143 Cal.App.4th 786 is misplaced. Therein, the defendant agreed, as part of a plea bargain, to be sentenced to 9 years in prison and he was. (Id. at p. 788.) Also, as part of the bargain, he agreed that he would be released on his own recognizance pending a resentencing, during which he must not violate any laws, and if he did this and appeared at the resentencing, he would be resentenced to one year of local time to be served on weekends. (Ibid.) However, before the resentencing, he was arrested for an offense and the sentencing court eventually found that he had committed that offense and thereby violated the bargain and refused to resentence him to local time. (Ibid.) Defendant contended that the trial court retained discretion, despite his violation of that term of the bargain, to resentence him to local time and Blakely [Blakely v. Washington (2004) 542 U.S. 296] required a jury, not the trial court, to determine if he had, in fact, violated that term. (Carr, supra, 143 Cal.App.4th at p. 793.) We refused to address these contentions because defendant had failed to obtain a certificate of probable cause. (Ibid.) However, we commented that the court had no discretion to resentence defendant to local time after he violated the term of the bargain. (Id. at p. 794.) Carr simply does not stand for any of the propositions defendant ascribes to it which might be applicable to this case. Defendant cites no authority holding that a defendant’s absence when facing any court proceeding under any circumstances may not be used as a factor in imposing the upper term upon a revocation of probation. Defendant’s assertion that “[a] purely technical violation is insufficient; revocation is not warranted unless the violation is sufficiently substantial that revocation is ‘in the interests of justice’” has nothing whatsoever to do with using defendant’s almost five year absence as a factor justifying the imposition of the upper term. Finally, the fact, as defendant points out, that between February 27, 2007 and May 10, 2007, he managed not to violate any of the three terms of his February 2007 Cruz waiver, while admirable, did not mean the trial court abused its discretion in relying on his other conduct.
Issues and Discussion
1. Violation of California Rules of Court, rule 4.435(b)
The parties agree that under rule 4.435(b), as construed in Harris, supra, 226 Cal.App.3d at page 147, the court below was permitted to consider circumstances prior to the May 10, 2007 reinstatement of probation. Defendant goes on to incorrectly assert that defendant’s failure to complete community service and his association with a known felon occurred after May 10, 2007. In fact, as stated before, defendant admitted he associated with a known felon on February 27, 2007. As to the community service, in May, 2005, defendant was ordered to complete 400 hours by May 2006. By May 2006, he had completed only 180 hours. The court gave him another year, until May 24, 2007. Additionally, he was to show by July 6, 2006, that he was current in this obligation. Because the matter was continued and taken off calendar, he did not. This was eclipsed by the filing, in February 2007, of the first petition to revoke his probation, in which it was alleged that the service was not completed. Therefore, the trial court did not have to rely on the fact that by the time of the contested hearing on the second revocation and his sentencing to prison, defendant still had not fulfilled his community service obligation because he had failed to meet prior deadlines for its completion. Given the parties’ concession, the trial court was incorrect only in relying on events that occurred after May 10, 2007. Therefore, the court should not have relied on that rather insignificant part of the history of the case and the fact that his current violations were numerous. However, it is not reasonably probable that had defendant objected to the use of this information, as he does here for the first time, and the trial court agreed, the sentencing court would have imposed the midterm. (People v. Downey (2000) 82 Cal.App.4th 899, 917.)
Rule 4.435(b) provides in pertinent part, “On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: (1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.”
Harris held that rule 4.435(b)’s reference to “the time probation was granted” as meaning a reinstatement of probation following revocation. (Harris, supra, 226 Cal.App.3d at p. 145.)
The People cite Harris, without criticizing it, and conclude that it stands for the proposition that “nothing in the language of [rule 4.435(b)] bars considering events predating a reinstatement of probation. [¶] . . . On May 10, 2007, the trial court revoked probation and then reinstated it. . . . The court could consider [defendant’s] repeated failures to appear in court and the violation of his probation by associating with a known felon, which [defendant] admitted [citations], because they preceded reinstatement of [defendant’s] probation.” In his reply brief, defendant also cites Harris, also without criticizing it, and concludes that under it, “the trial court was permitted to consider circumstances prior to the May 10, 2007 reinstatement, but was barred from considering circumstances subsequent to [it].” Despite this, defendant argues that he did not “become significantly worse, sufficient to justify the upper term, in the 10 months between the [revocation and reinstatement on May 10, 2007] and the [second revocation on March 21, 2008].” Of course, by defendant’s own argument, the court could not have properly considered his behavior during this time as it was subsequent to the reinstatement of probation.
At that point, according to the testimony of defendant’s probation officer, he had completed only 192 hours, meaning he had performed only 12 hours between May 5, 2006 and March 21, 2008.
2. Abuse of Discretion in Imposing the Upper Term
Having already disposed of defendant’s contentions that the trial court should not have relied on his failure to complete community service and his absence for five years, we turn to defendant’s assertion that the record “is undisputed” that he completed his 52-week batterer’s course. However, he cites only to his testimony at the contesting hearing, ignoring the testimony of his probation officer that he had received no certification that defendant had completed the class.
See text following footnote 16, ante, page 10.
See footnote 13, ante, page 9.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST, J., McKINSTER, J.
To the extent defendant appears to suggest in his reply brief that the court relied on his 2000-2005 absence to both revoke his probation and sentence him to the upper term, he is incorrect. As stated, the court found seven violations of probation, none of which were dependent on this.