Opinion
A148942
01-13-2017
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC188751A)
Defendant Erin Maureen Foreman appeals after the trial court revoked her probation and executed a state prison sentence that had previously been stayed. Defendant's counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has also been informed of her right to file supplemental briefing, and she has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.
BACKGROUND
In May 2015, defendant was convicted after a jury trial of a felony violation of stalking in violation of a temporary restraining order or injunction (Pen. Code, § 646.9, subd. (b) ), a felony violation of attempted criminal threats (§§ 664/422), and two misdemeanor violations of disobeying a domestic violence restraining order (§ 273.6, subd. (a)). The victim was defendant's ex-husband. On August 27, 2015, the trial court (Judge Andrew Sweet) sentenced defendant to state prison for a term of four years and four months, but execution of the sentence was suspended and defendant was placed on probation for five years with various terms and conditions, including that she spend a year in the county jail and reside in a sober living home for a period of time thereafter, obey all laws, and totally abstain from alcohol during the probation period.
Further undesignated statutory references are to the Penal Code.
Defendant filed an appeal from the judgment in the underlying case, which is now pending before this court (case No. A146676); briefing is not yet complete.
At a hearing on March 17, 2016 (all further dates are in 2016), Judge Sweet removed the requirement that defendant wear a GPS bracelet. At that time, the judge reiterated: "Ms. Foreman is on a grant of probation with a state prison sentence, ESS [execution of sentence suspended]. And she knows if I find her in violation of probation, I am going to send her to state prison. She knows that. I am absolutely committed to making sure that the victim in the case is protected from Ms. Foreman and that Ms. Foreman, herself, is safe out in the community. [¶] So those are my goals, and I think that state prison sentence hanging over Ms. Foreman may be the most important factor of all of this because— [¶] I am looking straight at you, Ms. Foreman." Defendant responded, "I absolutely know." And the trial judge rejoined: "You know that if you violate— [¶] . . . [¶] you're going." Later in the hearing, the trial judge referred again to defendant's "ESS sentence."
According to the probation office report prepared in connection with the June 9, 2016 hearing, at the time of sentencing on August 27, 2015, the trial court admonished defendant that any violation of probation may result in the prison sentence being executed.
Less than a month later, on April 20, the Marin County Probation Department filed a petition to revoke defendant's probation on the grounds that she had violated two conditions of probation: conducting herself in a law abiding manner, and totally abstaining from the use of alcohol. From the petition we learn that defendant was arrested by the Chico Police Department on March 31, 2016, at about 4:30 a.m. for driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and leaving the scene of a vehicle accident with property damage (Veh. Code, § 20002, subd. (a)).
On April 28, defendant appeared with counsel before Judge Sweet on the petition to revoke probation. The case had originally been on calendar for the court to address a request to transfer probation from Marin County to a different county, but in light of the petition to revoke defendant's probation, that issue was not addressed. Defendant's counsel was given a copy of the petition to revoke probation; he had already received the underlying police report. After hearing arguments from counsel, defendant was remanded into custody pending further hearing.
At a hearing on May 20, before Judge Kelly Vieira Simmons, the parties informed the court that there was a resolution of the matter; defendant's attorney indicated that defendant would admit that she violated probation. Defendant was then advised by the court that she had the right to a formal hearing on the allegations contained in the petition to revoke; she stated that she understood that right and gave it up. She admitted the violations of probation alleged in the petition, and that there was a factual basis to support the admission based on the police report. The court found a factual basis for the admission and probation was revoked. The matter was put over for sentencing on June 9.
At the hearing on June 9, the trial court (Judge Sweet) denied defendant's request for reinstatement on probation, after considering the probation department's written Sentencing Memorandum, which recommended imposition of the four-year, four-month state prison sentence; the written submission of defense counsel (including a letter from defendant); the sentencing memorandum from the district attorney; and the arguments of counsel. The court also stated that he was "very familiar with Miss Foreman, having presided over her case, including the trial, and her performance on probation up until the violation." The trial judge gave a lengthy statement of reasons for his decision not to reinstate probation and instead impose the state prison term, stating that he "thought long and hard about it." The trial judge also indicated that he reviewed the California Rules of Court factors in aggravation and mitigation to make sure that the aggravated sentence (for which execution of sentence was suspended at the sentencing on August 27, 2015) was appropriate, and that he had "reevaluated whether I imposed the right type of state prison sentence in the first place, and I believe that I did."
The sentencing memorandum noted that, after filing the violation petition, the probation officer learned that the Butte County District Attorney had filed a criminal complaint in connection with defendant's DUI arrest, and the toxicology report showed a blood alcohol level of .17 percent about 90 minutes after the vehicle accident was reported by a witness.
The trial judge then addressed defendant directly: "I think the case, right at the sentencing stage, was probably worth a state prison sentence, but I wanted to—you know, given the—the fact that you had a young child and no record to speak of, I thought you deserved a fair chance to, you know, kind of show Dr. French wasn't right, or that my instinct about sending you to state prison was not right. [¶] I have a very—kind of in my head, clear conclusion that you are an extreme risk to public safety. I don't think there's any other rational conclusion to make. I fear deeply that you are committed to living kind of a lawless existence. I don't think you're honest with law enforcement or the Courts. You have kind of now a pattern that's presented itself clearly that you're gonna do whatever you want, regardless of what we think and what we're trying to do. [¶] I believe that the behavior in this case, the violation behavior, is emblematic of the charges from the trial, and there was a lot of evidence at trial that alcohol and potentially other drugs were being consumed and fueling your decisions to stalk and harass your ex-husband. And here we have you drinking and committing law violations, and I fear it's just one small step removed from getting back into that pattern of harassing Mr. Foreman." --------
The defendant was sentenced on count 1 (§ 646.9, subd. (b)) to the aggravated term of four years in state prison, and on count 2 (§§ 664/422) to a consecutive sentence of four months (one-third the midterm) for a total state prison term of four years and four months. The misdemeanor counts were stayed pursuant to section 654. Defendant was given 225 actual days credit for time served, and 225 additional days pursuant to section 4019. The trial judge solicited input from counsel to ascertain that the custody credits were correct; defense counsel agreed the credits were accurate. Fines and fees were imposed and reflected in the abstract of judgment.
Defendant filed a notice of appeal on July 12.
REVIEW
We have reviewed the entire record as required by People v. Wende, supra, 25 Cal.3d 436. Our independent review reveals no arguable legal issues within the meaning of People v. Wende that require further briefing.
Defendant was at all times represented by counsel who protected her rights and interests. Defendant received notice and a hearing on her probation violation, and was advised of and knowingly gave up her right to have a contested hearing. There was a factual basis for her admission. The trial court did not abuse its discretion in terminating defendant's probation.
The sentence imposed was lawful. We see no error in the calculation of custody credits, fines, and fees.
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.