Opinion
A149242
09-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ROMEL EDWARD DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. 174434, H54551)
Defendant Romel Edward Davis appeals from an order terminating his probation and sentencing him to five years in state prison. He contends the trial court violated his right to due process by summarily revoking his probation and executing a previously imposed five-year sentence without granting him a formal probation revocation hearing. He contends further that the trial court erroneously believed the it lacked authority to reinstate probation rather than execute the five-year term. We find no error and affirm.
Factual and Procedural Background
In August 2013, defendant pled no contest to one count of failing to register as a sex offender (Pen. Code, §§ 290.012, subd. (a), 290.018, subd. (b)) in superior court case No. H54551. Prior to sentencing in that case, defendant was arrested and charged with additional offenses. In May 2014, defendant pled no contest to one count of second degree robbery (§ 211) in superior court case No. 174434.
All further statutory references are to the Penal Code unless otherwise noted.
On August 20, 2014, defendant was placed on formal probation for a period of five years and ordered to serve 72 days in county jail in case No. H54551. On September 30, 2014, defendant was placed on formal probation for a period of five years and ordered to serve one day in county jail in case No. 174434.
On April 20, 2016, defendant admitted violating the terms and conditions of his probation in both cases based on allegations that he had committed an attempted robbery (§§ 211, 664), assault with a deadly weapon (§ 245, subd. (a)) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). In case No. H54551, defendant's probation was "simply revoked." In case No. 174434, defendant's probation was revoked and he was sentenced to the upper term of five years in state prison. Execution of sentence was suspended on the condition that defendant "attend and complete and follow all directives of the [Bay Area Community Services (BACS)] Free program." Defendant was released from custody, given 14 days to enroll in the program and ordered to "[b]e of good conduct and obey all laws." A hearing was set for May 4 as a "control date" to confirm that defendant had reported to the program and a second hearing was set for May 18 for receipt of a progress report.
A police report describes the incident as follows: "Victim stated that [defendant] entered Smart & Final with his right hand in his jacket pocket. [Defendant] pointed [his hand to the] front and stated, 'Back up! I got something.' [Defendant] went over to the alcohol section and grabbed two large glass alcohol bottles. Victim confronted [defendant]. [Defendant] hit victim with one of the glass bottles. Victim tackled [defendant] to the ground and held [defendant] down."
Although somewhat unclear from the record, defendant's probation in both cases appears to have been reinstated with the additional condition imposed by the court.
Defendant did not appear at the May 4 hearing. The minute order notes only that he was transported to the program as required by the court's order.
On May 16, 2016, a petition to revoke probation was filed, alleging that defendant had violated the terms and conditions of his probation by failing to report to the probation department after being released. On May 25, 2016, another petition to revoke probation was filed, alleging that defendant had violated the terms and conditions of his probation by committing a robbery (§ 211). That same date, a third petition to revoke probation was also filed, alleging that defendant had violated the terms and conditions of his probation by failing to register as a sex offender upon his release from custody (§§ 290, subd. (b), 290.018, subd. (b)).
A police report describes the incident as follows: "On 21 May . . . [defendant] entered Smart and Final . . . and grabbed two bottles of alcohol from the liquor shelf and began walking out. [Defendant] was contacted by [a witness and a victim]. [Victim was able to pull one bottle of alcohol away from [defendant], but not the other. [Victim] continued following [defendant] into the parking lot requesting [defendant] return the bottle of alcohol to him. [Defendant] then turned around, took a bladed stance and stated, 'Get off of me before you get punched.' Fearing for his safety, [victim] stopped pursuing [defendant]. [Defendant] fled."
On August 1, 2016, the court held a hearing on the petitions to revoke. At the start of the hearing, the court stated, "Just so our record is clear, [defendant] admitted to violating the terms and conditions of his felony probation back on April 20th of this year and in return for that he was sentenced to five years in state prison and execution of that sentence was suspended on condition that [he] comply with all the terms and conditions of his probation, which included that he maintain compliance with the BACS Free program." The court noted further that since April 20, the court received two new petitions to revoke: one based on an allegation that defendant violated the terms and condition of his probation on May 11 by failing to register as required by section 290 and one based on an allegation that he violated the terms and condition of his probation on May 21 by committing a robbery.
Prior to addressing the probation revocation on the merits, the court conducted a brief hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant has not challenged the denial of his Marsden motion on appeal.
When asked to respond, defense counsel admitted that while defendant went to the Oakland Police Department and made an appointment to register, he "failed to appear" at the appointment because there was "some confusion" regarding the date of the appointment. Counsel did not discuss the robbery allegation other than to note that sometime after May 18 he learned a "new case had been filed against [defendant]." Counsel devoted the majority of his argument to detailing defendant's difficulties obtaining his mental health medication following his release from custody and his attempts to attend and complete the BACS program. Ultimately, defense counsel argued, "his deal with [the court] was to successfully complete the BACS program" and "he was doing those things." Counsel requested that the court "give [defendant] another chance at this" and allow him to enter a residential drug treatment facility. Alternatively, counsel requested that the court "consider giving [defendant] something less than the five years."
The trial court replied: "All of those are understandable requests. The problem with all of that is that the court is precluded from doing any of it. Under People v. Howard, a 1997 case at 16 Cal.4th 1081 at 1088, if the court originally imposes a sentence and suspends execution of it, upon revocation the court must order the imposed sentence into effect. I don't have the right to deviate from an EOSS [execution of sentence suspended], which is why it was such a punitive sanction." The trial court added, "not only does the court not have the authority to deviate from it, I don't necessarily know I would if I could." Defense counsel reiterated that he believed "that the court does have the ability to deviate from it" but the court replied, "I don't. This was just reiterated in a case out in 2014 called People v. Bolian" (2014) 231 Cal.App.4th 1415. As a last effort, defense counsel suggested that the court had "wiggle room" to find that defendant "was in compliance with the BACS program" to which the court responded "that would be a legal fiction I'm not prepared to entertain." With that, the trial court terminated defendant's probation in both cases and executed the previously imposed five-year prison sentence in case No. 174434. Defendant timely filed a notice of appeal.
Discussion
Defendant contends he was denied due process because the court failed to grant him a formal hearing on the alleged probation violations prior to executing the previously imposed sentence. As the Attorney General argues, defendant has waived his right to contest the probation violation allegations. (People v. Martin (1992) 3 Cal.App.4th 482; People v. Dale (1973) 36 Cal.App.3d 191.)
Contrary to defendant's argument, the decisions in Martin and Dale amply support a finding of waiver in this instance. In Martin, the appellant claimed that the trial court had denied him his right to due process by revoking probation and imposing sentence without holding a formal probation revocation hearing. (People v. Martin, supra, 3 Cal.App.4th at p. 486.) The court acknowledged, "The record in the present case discloses neither a formal probation revocation hearing nor an express waiver by appellant of his right to such a hearing." (Ibid.) Nonetheless, the court concluded that appellant had "waived his right to insist on a revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced . . . and [by] failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation." (Ibid.)
In Dale, the appellant also contended that the order revoking his probation should be reversed because the trial court had failed to conduct a full probation revocation hearing. The court described the probation revocation hearing in relevant part as follows: "A hearing on revocation of probation and sentence was held . . . . Defense counsel stipulated that the matter might be heard and determined upon a supplemental probation report ordered by and furnished to the trial court. Acknowledging that the report was 'negative,' counsel argued against a state prison sentence based upon the remoteness of the crimes and appellant's efforts at rehabilitation. Appellant personally sought to convince the trial court that he should be recommitted to the California Rehabilitation Center. . . . Having read and considered the supplemental report, the trial court sentenced appellant to state prison for the time prescribed by law with credit for the period he was previously incarcerated." (People v. Dale, supra, 36 Cal.App.3d p. 193.) On appeal, the court found that defendant had waived his right to a contested probation revocation hearing through the "conduct of counsel in submitting an alleged violation of probation upon the probation report," and defendant's "acquiesc[ence] by his silence." (Id. at p. 195.)
Here, defense counsel acknowledged that defendant had violated his probation and focused his argument at the hearing on the proper disposition of the case in light of the assumed violations. As in Dale, defendant acquiesced in his counsel's decision by his silence. By failing to challenge the basis for the probation violation and opting instead to argue that the court should consider imposing a different lesser punishment than that previously agreed to, defendant has waived his right to contest the probation violation allegations.
Contrary to defendant's argument, nothing in the transcript of the Marsden hearing suggests that defendant wanted to challenge the alleged probation violations. His complaints related only to his representation at the April 20 hearing during which the five-year term was imposed. --------
Defendant also contends the trial court failed to properly exercise its discretion in executing the previously imposed sentence. He contends that the record does not show that the trial judge was aware of his discretionary authority to reinstate defendant to probation on the same or modified terms. (See People v. Medina (2001) 89 Cal.App.4th 318, 323 ["We are cognizant that, when a judge suspends execution of a prison term, the message being conveyed is that the defendant is on the verge of a particular prison commitment. Nonetheless, upon violation and revocation of probation under such circumstances, the sentencing court retains discretion to reinstate probation."].)
While the court's comments are perhaps ambiguous with respect to whether the court properly understood it had discretion to reinstate probation, as compared to its lack of discretion to deviate from the imposed sentence if it terminated probation, its citation to People v. Bolian, supra, 231 Cal.App.4th 1415 resolves any ambiguity. In that case, the court explained, "A probation violation does not automatically call for revocation of probation and imprisonment. [Citation.] A court may modify, revoke, or terminate the defendant's probation upon finding the defendant has violated probation. [Citation.] The power to modify probation necessarily includes the power to reinstate probation. [Citations.] Thus, upon finding a violation of probation and revoking probation, the court has several sentencing options. [Citation.] It may reinstate probation on the same terms, reinstate probation with modified terms, or terminate probation and sentence the defendant to state prison. [Citations.] [¶] If the court decides to reinstate probation, it may order additional jail time as a sanction. [Citation.] If, instead, the court decides to terminate probation and send the defendant to state prison, the sentence the court may impose depends on how the court disposed of the case when it first placed the defendant on probation. If the court originally suspended imposition of sentence, the court may, upon revocation and termination of probation, 'pronounce judgment for any time within the longest period for which the person might have been sentenced.' [Citation.] But if the court originally imposed a sentence and suspended execution of it, upon revocation and termination of probation, the court must order that imposed sentence into effect. [Citations.] The court ordinarily has no authority to impose a lesser sentence in such a case." (Id. at pp. 1420-1421.) Given the clarity of the above directions, we must interpret the court's comments in a manner that is consistent with a proper understanding of the law.
Given the defendant's history of unsuccessful grants of probation, the court cannot be found to have abused its discretion in terminating defendant's probation and executing the previously imposed sentence. (People v. Bolian, supra, 231 Cal.App.4th at p. 1421 ["The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court."].)
Disposition
The order terminating probation and executing defendant's previously imposed sentence is affirmed.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.