Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge, No. SCD198992
HUFFMAN, Acting P. J.
Following Maurice Garcia's guilty plea to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and false imprisonment (§§ 236/237, subd. (a)), together with his admissions of a previous domestic violence conviction enhancement (§ 273.5, subd. (e)(1)) and a prior prison term (§ 667.5, subd. (b)), the trial court imposed a stipulated prison term of six years and eight months but suspended execution of sentence and placed Garcia on probation, conditioned upon, among other things, that he serve 365 days in the county jail. Shortly after his release from local custody, Garcia admitted violating probation and the trial court imposed the previously suspended stipulated sentence.
All statutory references are to the Penal Code unless otherwise specified.
Garcia appeals, essentially contending his sentence should be reversed and the matter remanded for resentencing because the trial court failed to properly consider the possibility of continuing to stay the previously imposed stipulated sentence and to reinstate him on probation. We affirm.
By separate order we also deny Garcia's petition for writ of habeas corpus in case number D052662 based on a claim of ineffective assistance of counsel at the revocation and sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2006, Garcia entered a guilty plea to charges of domestic violence and false imprisonment based on an incident in May 2006, where he blocked his wife from leaving their home during an argument as their three children slept and then proceeded to grab her by the hair, punch her and kick her numerous times while pulling her into the bedroom and threatening to kill her. When his wife later attempted to leave their home to have someone call the police, Garcia caught up with her, threw her to the ground, and squeezed her neck until she almost passed out. Garcia released his grip and fled the area on foot when he noticed a couple walking by and his wife screamed that she was calling the police. Garcia was later taken into custody in Fresno County on an outstanding warrant regarding the incident and brought back to San Diego to face criminal charges.
In exchange for his plea, in which he also admitted an allegation of prior domestic violence and that he had served a prior prison term, the prosecutor dismissed the remaining complaint, which included a charge of criminal threats (§ 422) and allegations of a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike prior conviction (§§ 667, subds. (b)-(i), 1170.12)). The parties further agreed that the trial court would sentence Garcia to prison for six years and eight months, which would be suspended pending the successful completion of a term of probation, including the condition that he serve 365 days in local custody.
On September 12, 2006, the trial court sentenced Garcia in accordance with the plea agreement. At that time, the trial court also granted Garcia's counsel's request that Garcia be permitted to travel to and reside in Oregon upon his release from local custody. In doing so, the court admonished Garcia that he would have to comply with the orders of his probation officer, noting that he would not necessarily be able to go to Oregon immediately upon his release from custody. The court explained that Garcia would have to go through probation to get the paperwork processed which could "take months" and would entail "staying here until things are . . . in place." After Garcia's counsel informed the court that Garcia had no place to stay in San Diego, the court reiterated that if Garcia were to be placed on formal probation, he would have "to comply with probation's formal requirements," and that he could not "just get out of jail and get on a bus [to Oregon] the next day," but had "to go see probation and take care of business." Garcia said he was "aware of that" and he accepted probation under those terms.
On December 21, 2006, Garcia was released from local custody and met with a probation officer that same day. Before ending the interview, Garcia was permitted to make a phone call to an acquaintance where he said he was going to be staying. Garcia was instructed to provide the probation officer with his contact information by the next day and to come in on December 26, 2006 for his next scheduled meeting. Garcia's "whereabouts and activity were unknown for two weeks until he came into the probation office" on January 2, 2007, and failed a drug test. Garcia also failed his drug test on January 12, 2007.
On January 24, 2007, Garcia entered a denial to alleged violations of his probation for failure to report to the probation officer and to having positive drug test results, and requested an order to show cause (OSC) on the matter. The trial court summarily revoked probation, set the matter for an OSC, and ordered a supplemental probation report. At the OSC hearing, Garcia again entered his denial and the court set an evidentiary hearing for April 10, 2007.
At that time, Garcia waived his constitutional rights and right to an evidentiary hearing and admitted he had violated conditions of his probation by failing to report to his probation officer as directed and in using "a controlled substance on various dates[, with a positive result for methamphetamine on January 2, 2007 and a positive result for methamphetamine and amphetamine on January 12, 2007]." The court accepted Garcia's admission and formally revoked probation.
At the subsequent sentencing, Garcia's counsel asked that Garcia be recommended for CRC for his violation of using drugs even though the court noted that CRC would not take him because the stipulated sentence was a six-year, eight-month term. Counsel did not object to the imposition of the previously imposed but stayed sentence.
When the court then stated that Garcia would have a total of 417 days credit toward his prison sentence, defense counsel questioned whether those credits were correct. During the discussion that followed, Garcia told the court he should get extra credits for the time he was in custody in Fresno County on the San Diego County warrant. He also stated that he "was not able to go to Oregon . . . as the court had ordered because [his] probation officer would not allow [him] to go." Garcia claimed he had failed "to report [to probation] because [he] was homeless at the time and living in various places, Balboa Park and a car, so it was very difficult for [him] to report [because his probation officer] had [him] reporting once a week."
Garcia also thought he should get credits for the entire 365 days even though he had served less than six months on that condition of probation, or alternatively be able to serve some of his prison time in county jail up to that 365 days. He further believed he should get credit for his reincarceration on January 15, 2007, which was for an additional domestic violence incident not charged or admitted as a violation of his probation at the revocation hearing.
When the court attempted to clarify the matter, Garcia agreed that it was "very true" that he had been released from the custody condition on December 21, 2006, had been permitted to make a phone call to talk to somebody about where he was going to stay, and had failed to provide any information as instructed by probation until going back to that office on January 2, 2007. Garcia again explained that he had been homeless, that the place where he was to go was not available and that he had "stayed in Balboa Park until [his] family came down from Oregon and [he] had a place."
The court agreed to check into whether Garcia should have additional credits for the time served in custody in Fresno before being brought back to San Diego on this case. The court also agreed with Garcia's counsel to recommend fire camp for Garcia.
DISCUSSION
At the outset, we note that contrary to the People's position this appeal must be dismissed because Garcia failed to obtain a certificate of probable cause, one is not necessary here where the underlying plea and agreed upon sentence are not being attacked. (See § 1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) Rather Garcia's attack is merely on the trial court's failure at the sentencing after his probation was revoked to reinstate probation and continue the stay of his stipulated sentence.
In this regard, Garcia asserts that he was "doomed" to fail on his release from custody and "was placed in an impossible situation" by being sentenced after revocation by a different judge than had originally sentenced him to the stayed stipulated sentence with the order that he be able to travel to and reside in Oregon with his family after being released from custody. He argues that because the second sentencing judge and his counsel, who was different than his initial counsel, did not have a transcript of the original sentencing at the time of the April 10, 2007 probation revocation and sentencing, neither had knowledge of the representations of his former attorney at the initial sentencing in this case about his situation of having no place in San Diego to stay and his need to leave San Diego for Oregon immediately. Garcia claims that with such knowledge, the second sentencing judge "would have strongly considered [staying the six year eight month sentence] to allow [him] a fighting chance at successful probation." Garcia argues that his statements that he was homeless and had no place to go after being released were not sufficient to catch the court's attention to his situation.
Garcia also claims that because "there was no time at all spent in discussing whether or not the judge should continue the stay of the [stipulated] sentence," and the trial judge here "could not have had the information he needed to exercise [the] discretion to reinstate [him] on probation rather than order the stay on the sentence imposed by [the original sentencing judge] to be lifted," remand for resentencing should occur to allow him the opportunity to present such information so the trial judge can properly exercise his discretion. In other words, Garcia essentially contends that the trial court abused its discretion in not considering reinstatement of probation after it was revoked based upon his admissions of having violated probation.
We find that Garcia's claims are meritless. Section 1203.2, subdivision (a), provides in pertinent part that, "the court may revoke and terminate . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his . . . probation." Once the court determines that a defendant has violated probation, it then must decide whether to revoke or reinstate probation under the circumstances. (People v. Medina (2001) 89 Cal.App.4th 318, 321; People v. Avery (1986) 179 Cal.App.3d 1198, 1204.) In so deciding, the court must consider the defendant's performance on probation and whether the defendant has shown that he can abide by the law. (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) Revoking or reinstating probation is within the broad discretion of the trial court and we will not disturb such exercise of discretion as abusive unless it is shown to be arbitrary and capricious. (People v. Rodriguez (1990) 51 Cal.3d 437, 443; People v. Edwards (1976) 18 Cal.3d 796, 807.)
Here, no such showing has been made. Although the trial court did not have a transcript of the original sentencing hearing before it, it had the minute order of the hearing and the resulting order granting probation in the record, which reflected that Garcia would be permitted upon release from local custody to travel and reside in Oregon "per interstate compact." A second minute order in the record entered right before Garcia's release reiterated that order for probation.
The court also had before it the supplemental probation report, which indicated that Garcia had a history of committing domestic violence crimes dating back to 1997, for which he had initially been granted formal probation. The court had revoked and reinstated that probation four times due to Garcia's noncompliance of conditions, including failing to complete a batterer's treatment program, testing positive for drugs, failing to complete a substance abuse program, and failing to report to his probation officer as directed. After Garcia was convicted of another misdemeanor domestic violence act while on probation, the court finally revoked probation and sentenced him to prison for two years. When he did not comply with the terms of his parole, he was returned to prison four times before being discharged from parole on September 9, 2004.
In addition to giving the background of the instant probation violations in this case, the supplemental report also noted that Garcia had been arrested and booked into county jail on January 15, 2007 for inflicting corporal injury on his spouse with whom he was then staying in San Diego. Based on Garcia's history of violating conditions of probation and parole, and the almost immediate violation of his probation conditions on multiple grounds in this case, we cannot find that the trial court's exercise of its discretion in revoking probation and imposing the stipulated prison term was arbitrary or capricious.
Contrary to Garcia's suggestion that the court could not properly exercise its discretion because it did not discuss the possibility of continuing the stay of his sentence by reinstating probation, there is nothing in the record to indicate that the trial court believed it lacked the discretion to reinstate Garcia's probation instead of imposing the previously suspended prison term. We presume the trial court knew it could continue Garcia on probation before considering the matter and revoking Garcia's probation in light of his criminal history, poor track record on probation and parole, and his complete disregard for his current probation conditions which he freely admitted. (See People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [a trial court is presumed to know the law, recognize the relevant facts, and apply the correct statutory and case law in the judicial decisionmaking process].)
Moreover, the record reflects that Garcia was given the opportunity to provide any facts to the court to explain why he could not report to probation and to request continuing the stay of sentence, including providing any information from his first sentencing about his not having a place to stay in San Diego and his need to travel to Oregon soon after his release from custody, but instead chose to admit the alleged probation violations without explanation and to remain silent as to his sentence other than to request CRC housing or fire camp, and a recalculation of presentence credits.
Garcia's homelessness simply does not explain his failures to comply with his probation conditions. The transcript of the initial sentencing clearly shows that Garcia was aware at that time that he could not go immediately to Oregon even though he had no place to stay in San Diego and that he would have to go through the formal paperwork requirement of the probation department which could take months. He chose to accept such condition of probation rather than go to prison at that time. Upon his release from local custody, it was his own voluntary conduct of ignoring direct probation officer orders and seeking out and using illicit drugs that triggered his current probation violations. In light of this record, no abuse of discretion in the trial court's revocation and imposition of the suspended stipulated prison sentence can be shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McDONALD, J.