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People v. Harbour

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119675 (Cal. Ct. App. Sep. 30, 2008)

Opinion


THE PEOPLE, Plaintiff and Appellant, v. CLINT HARBOUR, Defendant and Appellant. A119675 California Court of Appeal, First District, Third Division September 30, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Mendocino County Super. Ct. No. SCUK-CRCR-05-64186

McGuiness, P.J.

Clint Harbour appeals from an order terminating his probation and imposing a prison term of five years. Harbour’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.

In a separate cross-appeal, the People contend the trial court lacked authority at the time it terminated probation to reduce a previously imposed but suspended sentence. We agree and modify the judgment accordingly. In all other respects, the judgment is affirmed.

Factual and Procedural Background

On March 4, 2005, a Willits police officer made contact with Harbour and codefendant Lionel Clark in a parking lot. The officer observed that Clark was under the influence of a controlled substance. During a consent search of Clark’s vehicle, the officer found seven grams of heroin, hundreds of hypodermic syringes, cotton balls with heroin residue, and marijuana. In addition, on that same date, two special agents from the Mendocino Major Crimes Task Force searched Clark’s cargo trailer pursuant to a search warrant. The agents seized 74.8 grams of tar heroin during their search.

The Mendocino County District Attorney filed a two-count felony complaint on March 15, 2005, charging Harbour with possession for sale of a controlled substance (Health & Saf. Code, § 11351) and transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The complaint also contained the following three special allegations: (1) that Harbour had suffered a prior conviction for a felony violation of Health and Safety Code section 11378 (Health & Saf. Code, § 11370.2, subd. (a)); (2) that Harbour had a prior conviction for a felony offense for which he had served a prison term and had not remained free of prison custody for a period of five years before commission of the current offense (Pen. Code, § 667.5, subd. (b)); and (3) that Harbour was statutorily ineligible for probation under Penal Code section 1203.07, subdivision (a)(1).

On May 17, 2005, pursuant to a negotiated disposition, Harbour pleaded no contest to transportation of heroin and admitted the first two special allegations in the complaint. The negotiated disposition included an agreement that a nine-year prison sentence would be imposed, comprised of the aggravated term of five years in state prison for transporting heroin (Health & Saf. Code, § 11352, subd. (a)), plus consecutive terms of three years for the prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)) and one year for the prior prison term allegation (Pen. Code, § 667.5, subd. (b)). The parties agreed to suspend execution of the nine-year sentence and place Harbour on probation for five years. Up to 365 days in county jail would be imposed as a term of probation with day-for-day credit for time spent in a residential treatment program, provided that Harbour successfully completed the program. A number of open misdemeanor cases were to be dismissed, two misdemeanor probations were to be terminated and any time imposed on those cases was to be concurrent with the time imposed in the instant case, and one uncharged felony would remained unfiled. The remaining count and special allegation in the complaint were dismissed pursuant to the plea. The court concurred with the plea agreement and agreed to accept it.

At the sentencing hearing on August 12, 2005, the court struck the first special allegation concerning a prior narcotics conviction on the People’s motion. The district attorney informed the court that Harbour’s rap sheet had incorrectly reflected a prior conviction for violating Health and Safety Code section 11378 when the prior conviction had instead been for a violation of Health and Safety Code section 11358. The district attorney indicated it was necessary to correct the plea to reflect that the agreement was for an execution-suspended sentence (ESS) of six years instead of nine years in light of the dismissal of the three-year enhancement for a prior narcotics conviction.

Harbour was sentenced in accordance with the corrected plea agreement. The court indicated it was imposing the term of six years pursuant to the parties’ stipulation. Although Harbour was presumptively ineligible for probation as a result of two prior felony convictions (Pen. Code, § 1203, subd. (e)(4)), the court found unusual circumstances rendering Harbour eligible for probation. The court suspended execution of the sentence and placed Harbour on probation for five years on terms and conditions provided by the probation department. The court imposed a $1,200 restitution fine pursuant to Penal Code section 1202.4 in addition to other fines and fees. A probation revocation fine of $1,200 was imposed pursuant to Penal Code section 1202.44, with the fine stayed pending successful completion of probation.

On May 19, 2006, Harbour’s probation officer filed a petition to revoke Harbour’s probation, alleging that Harbour had been discharged from a residential treatment program as a result of a program violation and had failed to contact probation, begin to serve his 365 day jail sentence, make any monthly payments toward his restitution and fines, or enroll and complete 50 hours of community service. Harbour’s whereabouts were then unknown.

Over one year later, on August 21, 2007, Harbour’s probation officer filed an amended petition to revoke Harbour’s probation, adding the allegation that on March 12, 2007, Harbour had resisted arrest and fled when the California Highway Patrol attempted to arrest him. It was further alleged that ammunition had been found in Harbour’s vehicle on that occasion.

The court conducted a contested hearing on the alleged probation violations on September 21, 2007. Over defense counsel’s hearsay objection, the court accepted into evidence a March 16, 2006, letter from the director of the residential treatment program that had enrolled Harbour reflecting his termination from the program on February 6, 2006, as a result of a rule violation. A Mendocino County probation supervisor testified that the probation department had not heard from Harbour since learning he had been discharged from his treatment program, had not received any required payments from Harbour, and had not received notification that he had enrolled to perform community service hours. In addition, Harbour had not surrendered himself to serve his jail term.

Harbour testified on his own behalf. He claimed he had attended the residential treatment program for 90 days but had been forced to leave “for lack of funding,” although he said program officials used the “excuse” that he had left the facility without permission to justify his termination from the program. Nevertheless, he admitted leaving the facility on at least one occasion without notifying his counselor, as he was required to do. He also admitted that he had failed to contact the probation department or turn himself in after he was discharged from the residential treatment program.

At the conclusion of the hearing, the court sustained the petition to revoke probation with respect to all of the allegations contained in the original petition filed May 19, 2006. Because the officer who had attempted to arrest Harbour on March 12, 2007, was unavailable to testify, the court did not rule on the allegations arising out of that incident but instead continued the matter to be heard at a later time.

At a further contested probation violation hearing on October 9, 2007, California Highway Patrol Officer Kevin Berg testified as to the incident of March 12, 2007, that was alleged in the amended petition to revoke probation. Berg stated he had attempted to stop Harbour’s vehicle after observing that Harbour’s front passenger was not wearing a seat belt. During the pursuit, Harbour parked his vehicle at a store and ran away after the officer told him to stop. When Harbour reached a fence he was unable to scale, the officer drew his firearm and ordered Harbour to lie on the ground. Harbour refused to comply and ran away. Because it had become clear there would need to be a physical confrontation, Berg discontinued the pursuit out of a concern for officer safety. When the officer returned to the vehicle that Harbour had left behind, he found a wallet containing Harbour’s identification. In addition, the officer found .22 caliber ammunition inside a pill bottle on the vehicle’s dashboard. The court found by a preponderance of the evidence that the amended allegations of the petition were true and that Harbour was in violation of his probation.

At the sentencing hearing on October 19, 2007, Harbour’s trial counsel urged the court to place his client on probation and, if the court were disinclined to grant probation, to review the sentence and consider the middle term as opposed to the aggravated term that had previously been imposed but suspended. The court denied a further grant of probation, finding that Harbour was presumptively ineligible for probation and that the case did not present unusual circumstances justifying eligibility for probation. The court chose to “recall” the sentence. The court noted that Harbour had prior felony convictions as aggravating circumstances, but nonetheless agreed with Harbour’s counsel that “it is a mid-term case.” Over the prosecutor’s objection to “recalling the sentence at this late date,” the court imposed a total five-year term of imprisonment, comprised of the middle term of four years for transporting a controlled substance (Health & Saf. Code, § 11352, subd. (a)) together with a consecutive one-year sentence for the prior prison term (Pen. Code, § 667.5, subd. (b)).

Harbour’s trial counsel mentioned that the original sentence had been imposed before the decision in Cunningham v. California (2007) 549 U.S. 270, in which the United States Supreme Court held that factors justifying an upper term sentence, other than the fact of a prior criminal conviction, must be submitted to a jury or admitted by the defendant. Contrary to the suggestion that Harbour’s sentence was unlawful under Cunningham, Harbour was not entitled to be resentenced for the simple reason that he agreed to a specified sentence as part of his plea. “[A] plea agreement that includes a specified sentence constitutes an implicit waiver of [the] right to” challenge the sentence as unlawful. (See People v. French (2008) 43 Cal.4th 36, 49.) In any event, Harbour’s prior felony convictions by themselves would justify imposition of the upper term under our Supreme Court’s decision in People v. Black (2007) 41 Cal.4th 799.

The trial court purported to “recall” the sentence, even though that term is typically used to signify what a court may do after a defendant is committed to state prison. (See Pen. Code, § 1170, subd. (d) [after commitment to prison, sentencing court may “recall the sentence” within specified period for resentencing].) Here, Harbour had not yet been committed to state prison when the court “recalled” the sentence.

The court granted Harbour 92 days of presentence credit, consisting of 62 actual days served plus 30 days of conduct credits. In addition, the court imposed a $1,000 restitution fine pursuant to Penal Code section 1202.4 as well as a $1,000 parole revocation fine pursuant to Penal Code section 1202.45, which the court stayed pending successful completion of a period of parole.

The court did not order into effect the probation revocation fine that had previously been imposed but suspended at the time probation was granted. (See Pen. Code, § 1202.44 [probation revocation fine effective upon revocation of probation and may not be reduced or waived absent compelling and extraordinary reasons stated on the record].) The district attorney did not object to the failure of the court to impose the probation revocation fine.

Harbour filed a timely notice of appeal on November 5, 2007. The People filed a timely cross-appeal on December 12, 2007.

Discussion

1. There Are No Arguable Issues Warranting Further Briefing.

Harbour’s counsel filed a brief identifying no arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, Harbour has had an opportunity to file a supplemental brief with this court but has not done so.

Although Harbour’s counsel did not find any arguable issues supporting an appeal, she nevertheless identified two potential issues for this court’s review. First, Harbour’s counsel suggests the trial court may have abused its discretion by failing to determine Harbour’s ability to pay fines and fees before finding a probation violation on that basis. (See Pen. Code, § 1203.2, subd. (a); People v. Self (1991) 233 Cal.App.3d 414, 418-419.) Second, Harbour’s counsel indicates an argument could be made that the trial court erred by admitting hearsay to support the contention that Harbour was discharged from his treatment program. (See People v. Shepherd (2007) 151 Cal.App.4th 1193, 1202.)

We conclude that neither of these two potential issues identified by Harbour’s counsel merits further examination. As to Harbour’s ability to pay fines and fees, the argument is waived due to the failure to interpose an objection at the time of the hearing. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590.) In addition, any error was harmless in that the court found multiple grounds for sustaining the petition to revoke probation. As to the purported hearsay offered to substantiate Harbour’s termination from his treatment program, the court accepted into evidence a letter from the program director stating that Harbour had been discharged. Such documentary evidence is routinely received at probation revocation proceedings without the need to call the document’s author. (People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066-1067.) In any event, Harbour admitted that he left his treatment program early and then failed to turn himself in to serve out his jail sentence.

Having reviewed the entire record and considered the issues identified by Harbour’s counsel, we conclude there are no arguable issues that warrant further briefing.

2. The Trial Court Erred When It Reduced Harbour’s ESS Sentence Upon Termination of Probation.

In their cross-appeal, the People argue that the trial court lacked jurisdiction at the time it terminated probation to reduce the ESS sentence that had previously been imposed but suspended. We agree.

In People v. Howard (1997) 16 Cal.4th 1081, 1084 (Howard), our Supreme Court “resolve[d] a conflict among Court of Appeal decisions regarding a trial court’s authority, on revoking probation, to reduce a probationer’s previously imposed but suspended sentence.” The court held that, “if the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage.” (Id. at p. 1095.)

This court has held that a trial court exceeds its jurisdiction when it mitigates or aggravates a previously imposed but suspended sentence at the time probation is revoked. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1425-1427.)

The Howard court focused on the “important distinction, in probation cases, between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) When a court suspends imposition of sentence before placing a defendant on probation, the court has full sentencing discretion upon revoking probation. (Ibid.) By contrast, when a court imposes a sentence but suspends its execution pending a term of probation, on revocation and termination of probation the sentencing judge must order that exact sentence into effect, subject to its possible recall under Penal Code section 1170, subdivision (d), after the defendant has been committed to state prison. (Howard, supra, 16 Cal.4th at p. 1088.) This result is compelled by statutory language in Penal Code section 1203.2, subdivision (c), which provides in relevant part that upon termination of probation, “if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect.” To a similar effect is rule 4.435 of the California Rules of Court (formerly rule 435), which provides in pertinent part that, upon termination of probation, “[i]f the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect . . . .” (Cal. Rules of Court, rule 4.435(b)(2).)

Penal Code section 1170, subdivision (d) provides as follows: “When a defendant subject to this section or subdivision (b) of [Penal Code] Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.”

The Howard court addressed the contention that inclusion of the word “may” in Penal Code section 1203.2, subdivision (c), affords the court discretion to reduce a previously imposed sentence. (Howard, supra, 16 Cal.4th at p. 1094.) The court rejected the argument, reasoning that the statute merely gives the trial court discretion to revoke or reimpose the suspension of the previously imposed sentence. If suspension is revoked and a prison commitment is ordered, however, the statute mandates that the previously suspended judgment shall “ ‘be in full force and effect.’ ” (Ibid.)

Harbour acknowledges that under the holding of Howard, supra, 16 Cal.4th 1081, the trial court lacks authority to reduce a previously imposed but suspended sentence upon revocation of probation. Harbour also concedes that this court is bound to follow the decision in Howard. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, Harbour points out that courts have authority under Penal Code section 1170, subdivision (d) to reduce ESS sentences after a defendant is committed to prison. (See fn. 5 ante.) He argues that a trial court should not have to wait until a defendant is actually committed to prison before recalling and reducing a sentence. According to Harbour, “[t]he court’s ability to exercise its sentencing authority should not rest on an inefficient technicality.”

Harbour’s contention was considered and rejected by the Howard court, which posed the question, “why should the sentencing court be required to wait until actual commitment before it exercises its resentencing options under [Penal Code] section 1170, subdivision (d)?” (Howard, supra, 16 Cal.4th at pp. 1093-1094.) The court responded that “[t]he obvious answer is that the Legislature has directed that in probation revocation situations any reduction of sentence must occur at the postcommitment stage.” (Id. at p. 1094.) The court went on to state that “[t]he Penal Code preserves the distinction between suspended imposition and suspended execution types of probation. [Citation.]” (Ibid.) A rule permitting the final sentencing judge to reduce an ESS sentence before a defendant is committed to prison would blur the distinction between the two types of probation.

Furthermore, Harbour’s original sentence was imposed pursuant to a negotiated disposition in which the parties stipulated to a six-year term as a condition of the plea. The trial court accepted the plea bargain and imposed sentence pursuant to the parties’ stipulation. Having done so, the trial court lacked jurisdiction to subsequently alter the terms of the plea bargain so that it was more favorable to the defendant. (People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) Under Penal Code section 1192.5, “the court may not proceed as to the plea other than as specified in the plea.” A court is free to reject a plea bargain but cannot modify it unless the parties agree. (People v. Ames, supra, at p. 1217.)

Accordingly, we conclude the trial court lacked jurisdiction to reduce Harbour’s ESS sentence upon terminating probation. The court was obliged to order into execution the previously imposed but suspended six-year term when it sentenced Harbour following revocation and termination of probation.

Disposition

The judgment is modified to impose the upper term of five years for the violation of Health and Safety Code section 11352, subdivision (a), to be served consecutively with the one-year enhancement under Penal Code section 667.5, subdivision (b), for a total prison term of six years. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. Except as so modified, the judgment is affirmed.

We concur: Pollak, J., Jenkins, J.


Summaries of

People v. Harbour

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119675 (Cal. Ct. App. Sep. 30, 2008)
Case details for

People v. Harbour

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. CLINT HARBOUR, Defendant and…

Court:California Court of Appeals, First District, Third Division

Date published: Sep 30, 2008

Citations

No. A119675 (Cal. Ct. App. Sep. 30, 2008)