Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a postjudgment order of the Superior Court of Orange County, Kelly MacEachern, Judge. Super. Ct. No. 03NF1060
Andrew Daniel Grajeda, in pro. per.; and Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
Introduction
Defendant Andrew Daniel Grajeda pled guilty to three felony counts and admitted prior convictions and prior prison terms. The trial court sentenced defendant to a 13-year prison term; execution of the sentence was suspended on terms and conditions. One of those conditions was that defendant successfully complete the two-year Delancey Street Foundation drug addiction treatment program (Delancey Street program). After 23 months, one month short of completing the Delancey Street program, defendant left the program, and failed to advise his probation officer of his whereabouts; defendant’s probation was revoked. The trial court ordered defendant to serve the original 13-year term, with no credit for the time spent in the Delancey Street program.
We reverse and remand for a new sentencing hearing. The record reflects that the trial court did not exercise any discretion in deciding whether to reinstate defendant’s probation or send him to prison. The failure to exercise any discretion is an abuse of discretion. Additionally, because defendant did not waive his right to custody credits for the time spent in the Delancey Street program, if, on remand, the trial court exercises its discretion and orders the previously suspended 13-year term executed, it shall give defendant credit for the time spent in the Delancey Street program.
Procedural History
On March 27, 2003, defendant was charged with unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5, subd. (a)), possession of burglary tools (Pen. Code, § 466), and unlawful possession of a syringe or hypodermic needle (Bus. & Prof. Code, § 4140). The felony complaint also alleged defendant had suffered nine prior convictions and served nine prior prison terms. (Pen. Code, § 667.5, subd. (b).) On September 23, 2003, defendant pled guilty to all counts and admitted all prior conviction and prior prison term enhancements. Pursuant to the terms of the plea agreement, defendant was sentenced to a 13-year prison term; execution of the sentence was suspended on terms and conditions, including defendant’s successful completion of the Delancey Street Foundation drug addiction treatment program. The plea agreement specified that if defendant failed to complete the Delancey Street program, the 13-year sentence would be imposed with no credit given for any time in the program. Defendant was also directed to notify his probation officer of any changes in residence.
The allegation of one additional prior conviction was dismissed by the prosecution.
On September 28, 2005, the probation department filed a petition to revoke probation on the ground defendant had left the Delancey Street program on September 3, 2005, and had failed to advise the probation department of his whereabouts. The probation order was revoked on September 28. Defendant denied violating probation, and a formal hearing was scheduled before Judge Kelly MacEachern, the judge who had originally sentenced defendant and placed him on probation; defendant objected to having Judge MacEachern conduct the hearing, but his objection was overruled.
The court found defendant was in violation of his probation due to his failure to complete the Delancey Street program and his failure to report to the probation department after being removed from the program. Defendant was ordered to serve the entirety of his 13-year sentence.
Defendant filed a notice of appeal from the trial court’s order revoking probation and executing a suspended sentence following a contested probation violation hearing. We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested that we consider a number of issues.
Defendant was given 30 days to file written argument in his own behalf. On August 13, 2007, he filed a supplemental brief in support of his appeal.
We examined the entire record, counsel’s People v. Wende brief, and defendant’s supplemental brief, and sua sponte identified several additional arguable issues. We therefore invited the parties to file supplemental briefs on the identified issues, which they did.
The issues we identified were the following:
Discussion
The trial court has wide discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Before probation may be revoked, a probation violation must be established by a preponderance of the evidence. (Id. at p. 447; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197.) As with other evidentiary rulings, the trial court’s decision to admit or exclude evidence at a probation revocation hearing is subject to review for abuse of discretion. (People v. Shepherd, supra, 151 Cal.App.4th at pp. 1197-1198.)
Substantial evidence supported the trial court’s finding that defendant willfully violated the terms and conditions of his probation. (People v. Rodriguez, supra, 51 Cal.3d at pp. 445-446.) We conclude the trial court did not abuse its discretion in admitting evidence of defendant’s urine test (People v. Catlin (2001) 26 Cal.4th 81, 134), or in admitting hearsay testimony as to how and why defendant left the Delancey Street program (People v. Sword (1994) 29 Cal.App.4th 614, 635). Therefore, the trial court did not abuse its discretion in determining defendant willfully violated the terms of his probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.)
When a defendant is on probation following the suspended execution of a prison sentence and the probation is revoked, the trial court may do one of two things: (1) order the previously suspended sentence to take effect; or (2) reinstate defendant’s probation on the same or modified conditions. (Pen. Code, § 1203.2, subd. (c); People v. Howard (1997) 16 Cal.4th 1081, 1087-1088.) If the court chooses to send the defendant to prison, it does not have the authority to reduce the sentence originally imposed. (People v. Howard, supra, 16 Cal.4th at p. 1084; People v. Price (2004) 120 Cal.App.4th 224, 244.)
This is in contrast to the situation where imposition of sentence is suspended. Under such circumstances, if the defendant’s probation is later revoked, the trial court retains the authority to choose from any sentencing option initially available to it. (Pen. Code, § 1203.2, subd. (c); People v. Howard, supra, 16 Cal.4th at p. 1084.)
The trial court’s decision to reinstate probation or to impose the original sentence is reviewed for an abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909; People v. Medina (2001) 89 Cal.App.4th 318, 323.) The failure to exercise any discretion is an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
Here, the trial court stated it could not reinstate defendant on probation because “this court feels very strongly that I need to honor my commitment that when I make a promise that this court cannot back down from it.” By simply refusing to consider reinstitution of probation because of a previous “commitment,” the trial court was in effect refusing to exercise its discretion. Therefore, we reverse the order sentencing defendant to serve the 13-year prison term to permit the trial court to exercise its discretion in determining whether reinstatement or modification of probation or the execution of the prison sentence is most appropriate, in light of defendant’s probation violation.
In order to properly exercise its discretion, the trial court must order an updated probation report when revocation of probation is before it. (Pen. Code, § 1203.2, subd. (b) [“The court shall refer its motion or the petition [to modify, revoke, or terminate probation] to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the probation of the probationer”]; Cal. Rules of Court, rule 4.411(a) [“If the defendant is eligible for probation, the court must refer the matter to the probation officer for a presentence investigation and report”].) When sentencing proceedings “occur a significant period of time after the original [probation] report was prepared,” the trial court must order a supplemental report. (Cal. Rules of Court, rule 4.411(c); see People v. Dobbins (2005) 127 Cal.App.4th 176, 180.)
In this case, preparation of a probation report was waived when defendant was initially sentenced. The trial court’s decision to order execution of the original 13-year term, rather than to consider reinstating or modifying defendant’s probation, was made without consideration of any probation report. This failure to obtain a probation report, too, was an abuse of discretion. We remand the matter and direct the trial court to order, obtain, and review a probation report and exercise its discretion in making its sentencing choice as described ante.
On remand, if the trial court in its discretion decides that probation should not be reinstated or modified and that defendant should be sent to prison, defendant must receive credit for the time he actually spent in the Delancey Street program, because defendant did not waive his right to credits for the time spent in that program. A defendant is entitled to custody credits under Penal Code section 2900.5 for time spent in a court-ordered residential treatment program. (People v. Jeffrey (2004) 33 Cal.4th 312, 318.) These credits may be anticipatorily waived at the sentencing hearing. (People v. Johnson (2002) 28 Cal.4th 1050, 1053-1054.) A defendant’s waiver of the right to future custody credits “must, of course, be knowing and intelligent.” (Id. at p. 1055.)
Here, although defendant entered a plea agreement, he did not waive his right to custody credits on the record, much less waive them in a knowing and intelligent manner. At the original sentencing hearing, the trial court advised defendant: “You are to successfully enroll in and successfully complete the Delancey Street program. If you are unsuccessful in this program, you will get no day for day credits. You will get no time. If you fall out of this program one hour earlier than they graduate you . . ., you will do all 13 years in state prison; do you understand that?” Defendant replied, “[y]es.” The trial court never advised defendant he had a right to custody credits for the time spent in the Delancey Street program, nor asked him whether he was willing to waive the right to those credits if he left the program.
Defendant was not entitled to challenge Judge MacEachern’s participation in the probation revocation hearing under Code of Civil Procedure section 170.6. The probation revocation hearing was a continuation of the plea bargain proceedings at which defendant was sentenced. (People v. Barnfield (1975) 52 Cal.App.3d 210, 215.) Having reviewed the record, we do not find Judge MacEachern was biased against defendant so as to deny him a fair hearing. (People v. Harris (2005) 37 Cal.4th 310, 347.)
Disposition
The postjudgment order is reversed. The matter is remanded for a new sentencing hearing at which the trial court must (1) order, obtain, and review a probation report, and (2) exercise its discretion in making a sentencing choice. If the trial court orders the previously suspended 13-year sentence executed, it shall give defendant credit for all time spent in the Delancey Street program.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.
1. Did due process prohibit the trial court from revoking defendant’s probation based on a finding that defendant left the Delancey Street program, when the written notice of defendant’s probation violation only referenced his failure to report to his probation officer? (Morrissey v. Brewer (1972) 408 U.S. 471, 489; People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153; People v. Mosley (1988) 198 Cal.App.3d 1167, 1174.)
2. Did the trial court err by failing to exercise any discretion when it imposed the full 13-year sentence without any credit given for the 23 months defendant spent in the Delancey Street program?
3. Did the trial court abuse its discretion by failing to consider any action other than terminating defendant’s probation and imposing sentence? We directed counsel to the following statement by the trial court: “[T]his court feels very strongly that I need to honor my commitment that when I make a promise that this court cannot back down from it.”
4. Did the trial court abuse its discretion by admitting evidence of defendant’s urine test, in light of the prosecution’s failure to prove the chain of custody of defendant’s urine sample?
5. Did the trial court abuse its discretion by admitting hearsay testimony as to how and why defendant left the Delancey Street program?
6. Was there substantial evidence of defendant’s willful violation of the terms and conditions of probation by failing to report to his probation officer?
7. Was there substantial evidence of defendant’s willful violation of the terms and conditions of probation by leaving the Delancey Street program?
8. Did the trial court abuse its discretion by finding defendant willfully violated his probation?
9. Was defendant prejudiced by any error on the part of the trial court?