Opinion
F075080
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. PAULO NUNO GONZALES, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F09903988)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge. (Retired judge of the Fresno County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
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Appellant Paulo Nuno Gonzales appeals from the denial of his request to reduce his felony receiving stolen property conviction to a misdemeanor. (Pen. Code, § 17, subd. (b)). On appeal, Gonzales contends: (1) the court abused its discretion when it denied his request to reduce this conviction to a misdemeanor; and (2) the court misunderstood its discretion in ruling on his request. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS
On July 9, 2009, Fresno County Sheriff's deputies called Gonzales regarding a stolen wood chipper valued at $28,500 they found at a property in Fresno. Gonzales responded to the deputies' location and explained that several months earlier, he met Raul Martinez at a gas station in Fresno and agreed to help him do some tree trimming. After working three to four days, Martinez asked Gonzales for a loan and told him he would leave the wood chipper as collateral. Gonzales lent Martinez $700; Martinez said he would be back in a few days to pay Gonzales his wages and the loan. Gonzales never heard from Martinez and did not have contact information for him.
Gonzales had been seen towing the wood chipper to and from the property.
On July 29, 2009, Gonzales pled no contest to a felony count of receiving stolen property (§ 496, subd. (a)) in exchange for the dismissal of a count of receiving a stolen vehicle (§ 496d, subd. (a)).
On August 26, 2009, the court suspended imposition of sentence and placed Gonzales on formal probation for two years on certain terms and conditions, including that he serve 120 days in custody. The court also ordered him to pay a total of $991 in fees, fines and probation costs.
On November 22, 2016, Gonzales filed a petition for dismissal requesting the court to dismiss his receiving stolen property conviction or reduce it to a misdemeanor. On the petition, which he signed under penalty of perjury, Gonzales marked a box that had the following statement printed next to it: "[Defendant] has fulfilled the conditions of probation for the entire period thereof." In a declaration attached to the petition, Gonzales requested that his felony conviction be reduced to a misdemeanor for the following reasons: (1) he was facing deportation proceedings; (2) he had "lived an honest and upright life since the pronouncement of sentence"; (3) he did not have any knowledge that the wood chipper was stolen; and (4) he was self-employed and entered a plea so he could be released from custody and support his family.
On December 8, 2016, the prosecutor filed an opposition to Gonzales's petition in which he argued against both the dismissal and reduction of Gonzales's receiving stolen property conviction. The moving papers provided the following background. On May 15, 2010, Gonzales was arrested for driving with a blood-alcohol content of 0.08 percent or greater (Veh. Code, § 23152, subds. (a), (b)). He was subsequently convicted and placed on three years' probation on the condition he serve 60 days in custody. The conviction resulted in Gonzales's probation in the instant case being revoked.
On July 6, 2010, Gonzales was arrested for driving while his driving privilege was suspended (Veh. Code, § 14601.1, subd. (a)). Although the case was dismissed, his arrest was a violation of his probation.
On September 1, 2010, Gonzales's probation was reinstated and extended to September 1, 2012.
On October 18, 2010, Gonzales violated his probation by driving while his driving privilege was suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a)). He was subsequently convicted of that offense and ordered to pay $175 in fines.
On July 17, 2011, Gonzales was arrested for child endangerment (§ 273a, subd. (b)). Although the case was dismissed, the arrest violated Gonzales's probation.
On August 5, 2011, Gonzales admitted violating his probation in the instant case and it was extended until August 5, 2013.
On September 6, 2011, based on Gonzales's failure to pay restitution and/or fines, which was a direct violation of his probation, the matter was sent to collections.
A probation fines and fees balance request dated December 1, 2016, indicates that in the instant case, Gonzales had a total balance of $800 outstanding on that date.
On December 20, 2016, Gonzales filed a second declaration in support of his petition for dismissal, in which he stated, in pertinent part, that the purpose of reducing his conviction to a misdemeanor was to prevent him from being deported and that his arrest for child endangerment arose out of a misunderstanding with a woman with whom he had two children for which he was in the process of establishing paternity. Gonzales also submitted a receipt that showed a payment to Fresno County Superior Court for $1,759, the balance of the amount due in his 2010 driving under the influence case.
On January 4, 2017, at a hearing on Gonzales's petition for dismissal, the court stated:
"For the record, the Court has read and considered the moving papers and the People's opposition. And Mr. Gonzales, I find a problem with your moving papers in that you—in your declaration, you declare that you have fulfilled all terms and conditions of your probation grant, and sir, that is not a true representation because you have suffered several violations of probation. So, sir, the Court cannot grant your probation grant—I mean, your petition, because you did not fulfill all terms and conditions of your probation grant. So at this time, sir, I'm willing to listen to anything you have to say, but it appears to me that I need to deny your petition." (Italics added.)
Later, when Gonzales advised the court that he had an attorney who had not yet arrived, the following colloquy occurred:
"THE COURT: Well, I mean, sir, I can tell you even with an attorney, the fact that you suffered violations of probation would tell me that this is not a petition that the Court's going to grant.
"[GONZALES]: Then there's nothing I can do?
"THE COURT: You suffered violations of probation, sir, so that does not fulfill the terms and conditions of your probation grant. So that's just a reality.
"[GONZALES]: So I can't do another petition or anything like that?
"THE COURT: You can't change the history, sir. You violated probation. That's the reality. So that's the background of the case, sir. The petition's [sic] denied." (Italics added.)
DISCUSSION
I. The Court Did Not Abuse Its Discretion When It Denied Gonzales's Request to Reduce His Felony Conviction
Gonzales contends that in ruling on his request to reduce his conviction to a misdemeanor, the court did not consider several mitigating circumstances that related to him and to his offense. Thus, according to Gonzales, the court abused its discretion when it denied his request because it made its decision "outside the individual consideration of the offense, the offender, and the public."
Gonzales does not challenge the court's denial of his request to dismiss his receiving stolen property offense pursuant to section 1203.4. --------
Receiving stolen property whose value is more than $950 is a "wobbler" offense that may, in the trial court's discretion, be punished as either a felony or a misdemeanor. (§ 496, subd. (a); § 17, subd. (b) (section 17(b)); People v. Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3.)
Section 17(b), in relevant part, provides: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison ... or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: .... [¶] ... [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Italics added.) The decision to reduce a wobbler offense rests within the trial court's discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) A defendant has the burden to demonstrate that the trial court's decision is arbitrary or unreasonable. (Ibid.) "[A] trial court will abuse its discretion ... if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.) "An application by a defendant to have the trial court declare a 'wobbler' a misdemeanor may be made at any time, even after probation is terminated ...." (People v. Wood (1998) 62 Cal.App.4th 1262, 1267, fn. 3.)
"By its terms, [section 17(b)] sets a broad generic standard [for a court's exercise of its discretion]." (Alvarez, supra, 14 Cal.4th at p. 977.) "[S]ince all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.410]." (Id. at p. 978.) "The purpose of the trial judge's sentencing discretion under section 17 is to impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon. Thus, the court in Meyer v. Superior Court [(1966)] 247 Cal.App.2d 133, 140, recognized that 'in conferring upon the court the power [under section 17 as amended in 1963 (Stats. 1963, ch. 191, § 1, pp. 2169-2170)] to declare an offense to be a misdemeanor after it has suspended imposition of judgment or sentence, the Legislature evidently intended to enable the court to reward a convicted defendant who demonstrates by his conduct that he is rehabilitated.' " (In re Anderson (1968) 69 Cal.2d 613, 664-665.)
Gonzales's petition and two supporting declarations did not include background and character information about Gonzales or any information that would have warranted granting his request to reduce his conviction. In one declaration, Gonzales asserted only that he had lived "an honest and upright life since pronouncement of sentence," that he did not know the property he received was stolen, and that he entered a plea only so "he could be released from custody and support his family." In the other declaration, Gonzales, in pertinent part, asserted only that he had paid a fine he was required to pay in a subsequent case and that the arrest for child endangerment resulted from a misunderstanding with the child's mother.
Additionally, it was undisputed that Gonzales (1) violated his probation several times; (2) falsely asserted in his petition and attached declaration that he complied with his probation terms and conditions during his probationary period and had lived an "honest and upright" life since initially being placed on probation; and (3) failed to pay $800 in fines, fees and probation costs. These circumstances provide further support for the court's denial of Gonzales's request to reduce his conviction because they demonstrate that he had not been rehabilitated. (In re Anderson, supra, 69 Cal.2d at pp. 664-665 [Legislature's intent in conferring on court power to declare offense a misdemeanor was to enable court to reward a defendant who demonstrates through conduct that he is rehabilitated].)
Further, "[a]s an ordinary proposition: ' " [A] party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense he is asserting." ' " (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) Therefore, Gonzales cannot complain that the court did not consider information he was required to provide and did not.
In any event, "the [forfeiture] doctrine [applies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.) Gonzales did not object on any grounds to the court's denial of his motion to reduce his offense to a misdemeanor. By failing to object to the court's alleged failure to consider the circumstances he claims supported the granting of his motion, he forfeited his claim that the court abused its discretion by denying his request to reduce his conviction because it did not consider these circumstances. Thus, we conclude that the court did not abuse its discretion when it denied Gonzales's motion to reduce his receiving stolen property conviction to a misdemeanor. II. The Court Did Not Misunderstand Its Discretion
Gonzales appears to contend that the court's references to his numerous probation violations in denying his request to reduce his conviction indicates the court believed Gonzales was ineligible to have his conviction reduced to a misdemeanor because he violated his probation. He further contends that because there is no requirement that a defendant not violate his probation in order for his felony conviction to be reduced to a misdemeanor, the court misunderstood its discretion when it denied his request. Thus, according to Gonzales, the matter should be remanded to the trial court so that it may properly exercise its discretion. We reject these contentions.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]
"Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citation.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ' "[A] trial court is presumed to have been aware of and followed the applicable law." ' " (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)
Although the court focused on Gonzales's numerous probation violations in denying his request to reduce his conviction, nothing in the court's comments indicates it believed these violations deprived it of discretion to reduce Gonzales's conviction. Further, "[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. [Citation.] Thus, the fact that the court focused its explanatory comments on [one factor] does not mean that it considered only that factor." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) By a parity of reasoning, that the court focused on Gonzales's probation violations in denying his request to reduce his conviction does not mean the court erroneously believed it lacked discretion to reduce Gonzales's conviction because of these violations. This is particularly true here because Gonzales did not provide the court with any information regarding mitigating circumstances relating to him or the underlying offense. Accordingly, we reject Gonzales's contention that the court misunderstood its discretion in ruling on his request to reduce his conviction.
DISPOSITION
The judgment is affirmed.