Opinion
H044796
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE EDUARDO GARCIA, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on August 28, 2018, be modified as follows:
On page 2, first paragraph, after the sentence beginning with "We will further include information about . . . ," add the sentence: And we discuss defendant's "contentions and the reasons that they fail . . . ." (Id. at p. 120.)
On page 3, first paragraph, after the sentence beginning with "Following a pause in the proceedings . . . ," add the sentence: Defendant answered affirmatively when the trial court asked him whether he understood his rights on a probation violation and whether he was giving up each of those rights.
On page 4, second full paragraph, replace "108 days of actual credits and 208 days of conduct credits" with: "108 days of actual credits and 108 days of conduct credits . . . ."
On page 4, after the heading "II. Discussion" add the following:
Defendant contends that his June 13, 2016 admission of probation violations was involuntary. He says he was not in his right mind because of his father's illness and that trial counsel coerced him into entering a plea without discussing the consequences of that plea or the rights he would be waiving. To the extent defendant is challenging the validity of his admission, that claim is not reviewable on appeal without a certificate of probable cause. (People v. Sem (2014) 229 Cal.App.4th 1176, 1186-1188 (Sem); People v. Billetts (1979) 89 Cal.App.3d 302, 308 ["Absent a certificate of probable cause, the issues raised by defendant concerning the validity of his admission of violation of probation, are not reviewable on appeal"].) To the extent defendant is arguing trial counsel was ineffective in connection with the probation violation admission, "[a] certificate of probable cause is also prerequisite to our review of [that] claim . . . ." (Sem, supra, at p. 1188.) Because defendant did not obtain a certificate of probable cause, we cannot reach the foregoing issues.
Defendant further argues that the trial court violated his constitutional right to due process by denying his June 6, 2017 request for a continuance to retain private counsel. " '[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [¶] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]' [Citation.] '[T]he trial court may not exercise its discretion "so as to deprive the defendant or his attorney of a reasonable opportunity to prepare." [Citation.]' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 650.)
The trial court previously had continued defendant's sentencing hearing three times and had ruled that no more continuances would be granted. Defendant then failed to appear for sentencing. Ten months passed before the hearing at which his request for further continuance was denied. Appointed counsel was present and prepared to move forward. In view of these circumstances, the trial court neither abused its discretion nor violated defendant's due process rights by denying his request for further continuance of the sentencing hearing.
Finally, defendant maintains the trial court penalized him for requesting a continuance by imposing a harsher sentence. The record contradicts that claim. After denying defendant's request for a continuance, the court indicated its intention to reinstate probation and order defendant to serve six months in county jail. It was only after the prosecutor objected, noting that was defendant's indicated sentence before he failed to appear 10 months earlier, that the court decided to impose a jail sentence.
There is no change in the judgment.
The petition for rehearing is denied.
/s/_________
ELIA, ACTING P. J.
/s/_________
BAMATTRE-MANOUKIAN, J.
/s/_________
MIHARA, J.
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. (Santa Clara County Super. Ct. No. C1365423)
Defendant Jose Eduardo Garcia pleaded no contest to violating Vehicle Code section 10851, subdivision (a) in exchange for probation and a six-month county jail sentence. While on probation, he admitted a number of probation violations and then failed to appear for sentencing on those admitted violations. Nine months later, defendant was arrested. At a subsequent sentencing hearing, the trial court denied defendant's request for a continuance to retain private counsel and imposed a low term sentence of 16 months in county jail.
On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal, which he has done.
Based on our independent review of the record, we conclude that there are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.)
I. BACKGROUND
By felony complaint filed in Santa Clara County superior court on September 17, 2013, defendant was charged with taking or driving a vehicle without the owner's consent (Veh. Code § 10851, subd. (a)). The complaint alleged that on June 3, 2013 defendant took a 1995 Saturn SL with the intent to deprive its owner, Pedro Lamas, of title and possession.
On October 22, 2014, defendant pleaded no contest to a felony violation of Vehicle Code section 10851, subdivision (a), in exchange for probation and six months in county jail. Pursuant to the plea agreement, the trial court suspended imposition of sentence and granted defendant three years' formal probation on November 6, 2014. One of defendant's probation conditions required him to serve six months in county jail. The court ordered defendant to pay $1,358 in restitution to "Pedro Lama" [sic]. The court also imposed the following fines and fees: a $308 restitution fine ($280 plus a 10 percent administrative fee) (Pen. Code, § 1202.4, subd. (b)) with an additional $280 probation revocation restitution fine, which was suspended pending successful completion of probation (§ 1202.44); a $40 court security fee (§ 1465.8); and a $30 criminal conviction assessment fee (Gov. Code, § 70373).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court orally purported to "waive any . . . fines and fees" other than the restitution and probation revocation fines. However, it lacked the authority to waive the court security and criminal conviction assessment fees, which are mandatory. The Clerk's minutes reflect that defendant was ordered to pay those fees. Therefore, although the court erred in orally waiving the court security and criminal conviction assessment fees, it corrected that error and imposed the fees.
At a June 13, 2016 probation violation hearing, defense counsel stated, defendant "has informed me his father is critically ill in the hospital. I don't know if the court would be able to work anything with a disposition for that." The court responded "Does he want to accept 6 months? And I'll give him a 30-day stay on the jail, with a Cruz waiver." Following a pause in the proceedings during which defense counsel and defendant conferred, defense counsel stated that defendant was "prepared to admit his probation violation, accept the court's indicated, with a Cruz waiver." Defendant proceeded to admit to violating his probation. The court explained that defendant would "get 6 months" at a later sentencing hearing. The court further explained: "If you don't come back on that [future sentencing] date, then the deal is off; and I can sentence you to anything up to and including 3 years in state prison on this case." Defendant indicated that he understood and agreed. Defendant further agreed that if he "miss[ed] court [without] a good excuse" or got arrested on another charge, then he would to "give up" the right to withdraw his admission if the court went "beyond the [six-month] agreement."
"In People v. Cruz (1988) 44 Cal.3d 1247, [the California Supreme Court] interpreted the provision of [Penal Code] section 1192.5 that permits a defendant who pleads guilty or nolo contendere pursuant to a plea agreement to withdraw the plea if the agreement subsequently is disapproved by the court. [The court] held that this provision applies even if the defendant fails to appear for sentencing. [The court] noted in a footnote, however, that a defendant could expressly waive his or her rights under section 1192.5 at the time the plea was entered. (People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)" (People v. Masloski (2001) 25 Cal.4th 1212, 1215, fn. 2.) --------
Defendant's sentencing hearing was continued three times; the court indicated that the third continuance would be the "last." Defendant failed to appear for sentencing on August 11, 2016. Defendant was arrested on May 28, 2017.
At a June 6, 2017 court appearance, defendant requested a continuance to retain private counsel. The court denied that request and proceeded to impose sentence on the probation violation defendant previously admitted on June 13, 2016. Initially, the court indicated its intention to reinstate probation and order defendant to serve six months in county jail. The prosecutor objected that defendant had been given an indicated sentence of six months before failing to appear 10 months earlier and argued that "a zero increase for being gone that long is not justified." The trial court agreed and imposed the low term sentence of 16 months in county jail pursuant to section 1170, subdivision (h)(1) with 200 days of credit for time served. The court imposed the previously suspended $280 probation revocation restitution fine, probation having been revoked.
Defendant timely appealed on June 30, 2017. His notice of appeal indicated his appeal was based on the sentence or other matters not affecting the validity of his plea.
On October 16, 2017, the court entered an order nunc pro tunc modifying the award of presentence credits to 216 days—108 days of actual credits and 208 days of conduct credits pursuant to section 4019.
II. DISCUSSION
Having examined the entire record, we conclude that there are no arguable issues on appeal.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.