Opinion
E052888 Super.Ct.No. SWF025324 Super.Ct.No. SWF028633
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. CODY JAMES HILLYER, Defendant and Appellant.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
OPINION
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed as modified.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Cody James Hillyer appeals the revocation and termination of his probation. He argues there is insufficient evidence to support the trial court's finding he violated a term of his probation. He also believes the trial court erred when it sentenced him without a supplemental probation report and imposed duplicate restitution and security fees.
FACTUAL AND PROCEDURAL HISTORY
On March 6, 2008, defendant went to a party and got into a verbal squabble with the victim. Both said the other was intoxicated. Both blamed the other as the aggressor in the altercation. Defendant hit the victim twice in the face. The victim had bruising to both eyes and a swollen upper lip. His upper lip was so swollen he could barely open his mouth. He suffered multiple fractures to his nasal cavity and complained of migraines. The injuries took about two and one-half months to heal and required extensive surgery.
Defendant was charged in case No. SWF025324 with assault by means likely to produce great bodily injury (count 1—Pen. Code, § 245, subd. (a)(1)) and with an enhancement for the infliction of great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). On August 12, 2008, defendant pled guilty to the assault and admitted the great bodily injury enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
On September 26, 2008, sentence was suspended, and the court granted defendant probation for 48 months, subject to various terms and conditions, including completion of an anger management program, 300 days in a work release or labor program, and 200 hours of community service. In granting defendant probation, the court found there were "unusual circumstances." First, the court believed defendant intended to hit and hurt the victim, but did not intend to cause the extent of injuries suffered by the victim. Second, defendant was young and had no prior record. The offense was "out of character" for him and was not indicative of a pattern of crime with increasing seriousness. However, because of the seriousness of the offense, the court warned defendant it would not hesitate to send him to state prison if he did not comply with the terms and conditions of his probation.
On July 7, 2009, while on probation in the assault case, defendant was charged in a new case (case No. SWF028633) with unlawful possession of a controlled substance, Oxycontin (count 1—Health & Saf. Code, § 11350, subd. (a)) and with being under the influence of a controlled substance (count 2—Health & Saf. Code, § 11550, subd. (a)). The complaint further alleged defendant's prior assault conviction (case No. SWF025324) qualified as a strike (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). Defendant was also charged in the complaint with a violation of his probation in the assault case and was notified the probation violation would be prosecuted at the same time as this new case.
On October 20, 2009, defendant pled guilty to count 1 in the new Oxycontin case and count 2 was dismissed. During the same hearing, defendant admitted violating his probation in the assault case. He was granted probation under Proposition 36 in the Oxycontin case and ordered to enroll in and complete a residential treatment program through Salvation Army. Probation was reinstated in the assault case but modified to also require defendant to enroll in and complete the Salvation Army residential treatment program. Defendant enrolled in and was then discharged for various reasons from four different Salvation Army programs in Riverside (Perris), San Bernardino, Orange County, and San Diego. Defendant did not successfully complete any of the programs.
Defendant's probation officer in the assault case later told the court she spoke with defendant about his discharge from the Salvation Army programs and told defendant to request a hearing to see if the court would refer him to a different program. She also explained to the court that defendant had a different probation officer in the Oxycontin case, the two cases were proceeding separately, and she was not familiar with the specifics of the Oxycontin case as it was being handled in drug court.
On September 30, 2010, defendant did file a request in the Oxycontin case for a hearing to modify his program and was given a hearing date of October 7, 2010. Defendant later told the court he requested the hearing at the suggestion of his probation officer in the assault case and thought he was requesting a hearing in both cases. At the hearing on October 7, 2010, in the Oxycontin case, defendant was referred to "Temecula Mental Health" and ordered to return to court on November 8, 2010, to provide proof of enrollment. However, on November 8, 2010, defendant did not appear and provide proof of enrollment, so probation was revoked in the Oxycontin case, and a bench warrant was issued.
In the meantime, on October 28, 2010, a petition was filed to revoke defendant's probation in the assault case for failure to complete the Salvation Army program. In addition, on December 2, 2010, a second petition was filed in the assault case alleging defendant violated the term of his probation which required him to "Report to the Alternative Sentencing Program and enroll, participate and complete the Anger Management program." A hearing was scheduled for January 3, 2011.
On December 3, 2010, the court held an evidentiary hearing on the allegation made in the petition filed October 28, 2010, that defendant was in violation of his probation because he failed to complete the Salvation Army program. At the hearing, the court considered testimony from several witnesses, including defendant. On the same date, the court also held a hearing on the same violation in the Oxycontin case. The court found defendant in violation of his probation in both cases and declined to reinstate probation based on a number of factors.
In the assault case, the court terminated probation and sentenced defendant to a total of six years in state prison. To reach the total term, the court imposed the middle term of three years for the assault offense and another three years for the great bodily injury enhancement. In the Oxycontin case, the court terminated probation and sentenced defendant to a total term of 1 year, 4 months on count 1 to be served concurrently with the sentence imposed in the assault case.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends the trial court abused its discretion in terminating his probation in the assault case, because the record lacks evidence he willfully violated the probation term requiring him to complete the Salvation Army program. According to defendant, there is no evidence he departed from any of the Salvation Army programs because of willful misconduct. In addition, defendant believes the record shows he was eagerly complying with this term. For example, defendant believes his eager compliance is evidence because he reenrolled in a new program as soon as possible after being terminated from a prior program. In addition, after being terminated from the Salvation Army programs, defendant requested a hearing to ask the court to refer him to a different program.
"Our trial courts are granted great discretion in determining whether to revoke probation. [Citation.]" (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The level of certainty required to support a probation revocation is less than that required to support a criminal conviction. Section 1203.2, subdivision (a), authorizes probation revocation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the [probationer] has violated any of the conditions of his or her probation . . . ." Our Supreme Court has interpreted "reason to believe" under section 1203.2, subdivision (a), to impose a "preponderance-of-the-evidence" standard of proof. (Rodriguez, at p. 446.) An appellate court will not disturb a decision to revoke a defendant's probation unless it finds the trial court abused its discretion. (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) "„[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .'" (Rodriguez, at p. 443.) "A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 983.)
"[W]here the trial court was required to resolve conflicting evidence [to determine whether a defendant violated the conditions of his probation], review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
In reaching its conclusion that defendant violated terms of his probation in both cases, the court supported its decision by referring to the evidence, as well as to the procedural posture of the case. First, the court stated defendant had already violated his probation once in the assault case and had been reinstated after his conviction for possessing Oxycontin. Second, the court said it was "in receipt of further termination notices for anger management and community service hours." Third, the court noted defendant had no certificate of completion for the Salvation Army program despite four attempts. Fourth, the court did not find credible defendant's self-serving reasons for not completing any of the Salvation Army programs. Fifth, the court rejected defendant's claim he attempted to bring himself into compliance in both cases by requesting a hearing to modify his probation so he could attend a different program, but was confused and did not realize he only made the request for a hearing in the Oxycontin case. The court indicated the most relevant inquiry was whether defendant completed the Salvation Army program, and issues as to how the cases were proceeding were irrelevant. In the opinion of the court, there was no "ambiguity whatsoever in the way the case is being handled by the different probation officers." Based on all of the facts and circumstances, the court found defendant violated the terms of his probation in both cases and was no longer suitable for probation.
The record includes ample evidence to support the trial court's conclusion defendant violated the terms of his probation in both cases. The term requiring him to complete a Salvation Army program was added to both cases as of October 9, 2009, when defendant pled guilty in the second case to possession of Oxycontin. More than a year later, at the evidentiary hearing on December 3, 2010, defendant admitted he had enrolled in but been discharged from four different programs and had not completed any of them. Thus, the main issue for the court to decide at the hearing on December 3, 2010, was whether defendant's failure to comply with the condition was willful.
In his testimony, defendant attempted to convince the court he did not willfully violate this term of his probation but was instead doing his best to comply. Based on his testimony and counsel's arguments, defendant's theory was that he could not be held responsible for failing to obtain a certificate of completion, because he was involuntarily discharged from the Salvation Army programs for reasons that were not his fault or that were beyond his control. However, it is also apparent the trial court ruled against defendant on this issue based on credibility. The court simply did not believe defendant was blameless, particularly when he was discharged for fighting and for testing positive for opiates after taking prescription cough medicine. When the record is viewed as a whole, it is our view a rational trier of fact could reasonably reject defendant's self-serving explanations for being discharged from his programs, and conclude the discharges were the result of willful conduct. Accordingly, sufficient evidence supports the trial court's conclusion defendant willfully violated the term of his probation in the assault and Oxycontin cases that required him to complete a Salvation Army residential treatment program.
B. SUPPLEMENTAL PROBATION REPORT
At the hearing on December 3, 2010, immediately after finding defendant in violation of his probation, the court stated it was prepared to pronounce judgment. Defense counsel requested time for a probation memo. The court said it had read the sentencing memorandum prepared for defendant's sentencing on September 28, 2008, and was ready to pronounce judgment based on that report. Defense counsel objected for the record. The court then considered arguments by counsel, as well as pictures, presumably of the victim's injuries.
Defendant contends it was prejudicial error for the trial court to deny the defense request for a supplemental probation report. He believes a reinstatement of probation or a mitigated prison sentence was likely if the trial court obtained and considered information that would have been included in a supplemental probation report. However, defendant does not state what information could have been included in a supplemental probation report that would have favored a reinstatement of his probation or a lower prison term.
Subdivision (b)(1) of section 1203 requires the court to refer the case to a probation officer for an investigation and report "if a person is convicted of a felony and is eligible for probation." If a person has previously been convicted of a felony involving the willful infliction of great bodily injury, probation shall not be granted "[e]xcept in unusual cases where the interests of justice would best be served . . . ." (§ 1203, subd. (e)(6)(C).)
Here, the court's original grant of probation in the assault case was based on the existence of unusual circumstances, since defendant admitted he inflicted great bodily injury on the victim. The court said there were unusual circumstances, because defendant was young, had no prior arrests, and did not pose a risk of further danger to the community.
"At any time during the probationary period . . . if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation . . . the officer may . . . rearrest the person and bring him or her before the court . . . . Upon such rearrest . . . the court may revoke and terminate such 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 or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses . . . ." (§ 1203.2, subd. (a).)
In related subdivision (b) of section 1203.2, it states in part as follows: "Upon its own motion or upon the petition of the probationer, probation officer or the district attorney[,] the court may modify, revoke, or terminate the probation of the probationer. . . . The court shall refer its motion or the petition to the probation officer. After the receipt of a written report from the probation officer, the court shall read and consider the report and . . . may modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require." In addition, subdivision (b)(4) of section 1203 state as follows: "The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court . . . ."
California Rules of Court, rule 4.411(c) provides as follows: "The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." The Advisory Committee Comment to this rule states: "Because such a probation investigation and report are valuable to the judge and to the jail and prison authorities, waivers of the report and requests for immediate sentencing are discouraged, even when the defendant and counsel have agreed to a prison sentence. [¶] . . . [¶] Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, . . . after the apprehension of a defendant who failed to appear at sentencing. . . . [¶] . . . If a full report was prepared . . . in the same . . . jurisdiction within the preceeding [sic] six months, during which time the defendant was in custody, . . . it is unlikely that a new investigation is needed."
In our view, the record shows the probation department did provide the court with a supplemental report. The probation department filed the report on October 28, 2010, as part of the document alleging defendant was in violation of his probation for failing to enroll in and complete a Salvation Army program. Based on the information shown on the face of the report, it is clear the probation officer intended to update the court on events occurring, after probation in the assault case was reinstated on October 20, 2009. Despite the alleged violation, the probation officer's report recommended reinstatement of probation on the condition defendant serve 183 days in custody. The record indicates this report was before the court when the evidentiary hearing began on December 3, 2011. Apparently reading from this report, the court at the beginning of the hearing said, "The matter is here on a violation of probation. It looks like it's—right now the only violation that's in front of me in writing is a term 22 violation, enroll/complete Salvation Army program.
The court did not refer to this report again at the end of the hearing when it indicated it was ready to pronounce judgment and sentence defendant to state prison. As we read the record, there is a reason why the court at this time referred only to the sentencing memorandum prepared on September 28, 2008. First, the court considered the evidence and a number of factors, all of which are supported by the record, and then concluded reinstatement of probation was not appropriate for this defendant. The decision to terminate defendant's probation was made despite the probation officer's recommendation to reinstate probation with additional jail time.
Second, California Rules of Court, rule 4.435(a) states as follows: "When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute." In pertinent part, California Rules of Court, rule 4.435(b) states: "On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: [¶] . . . [¶] [(1)] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found." The "spirit and purpose of the rule" is to "preclude the possibility that a defendant's bad acts while on probation" will influence his sentence upon revocation of probation. (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) Thus, the court's reference to the sentencing memorandum prepared on September 28, 2008, was appropriate, because this is the report submitted to the court at the time probation was granted. In sum, we reject defendant's contention the court committed prejudicial error when it denied the defense request for a supplemental probation report at the hearing on December 3, 2010.
C. SENTENCING
Although defendant has not raised the issue, the People correctly represent that the sentence imposed by the court in the assault case on December 3, 2010, violated the terms of the plea agreement.
"[A]n unauthorized sentence may be corrected at any time." (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) "When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon." (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Here, the record shows defendant pled guilty in the assault case with the express understanding his sentence would not exceed a total of five years in state prison, based on a low term of two years for the assault plus three years for the great bodily injury enhancement. However, contrary to the plea agreement, the court imposed a total of six years in prison by imposing the middle term of three years, plus three years for the great bodily injury enhancement. As a result, the judgment in this case must be modified to reflect a low term of two years on the assault offense (§ 245, subd. (a)(1)), plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).
D. FINES AND FEE ASSESSMENTS
The parties agree certain fines and fees imposed by the trial court at the time of sentencing on December 3, 2010, in both the assault and Oxycontin cases, must be stricken as duplicative or improper. We agree with the parties.
A conviction is the triggering event for imposing a restitution fine under section 1202.4, subdivision (b), and the imposition of the fine survives the revocation and termination of probation. "[T]here is no provision for imposing a restitution fine after revocation of probation." (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.)
Here, in both the assault and Oxycontin cases, the court imposed restitution fines of $200 under section 1202.4 in each case in 2008 and 2009 when defendant was convicted and probation was granted. The court imposed $200 restitution fines in each case once again at the time defendant's probation was terminated and he was sentenced to prison. As a result, the second set of $200 fines imposed under section 1202.4 in each case on December 3, 2010, must be stricken.
Based on the statutory language, conviction is also the triggering event for court security fees imposed pursuant to Penal Code section 1465.8 and for criminal conviction assessment fees under Government Code section 70373. Thus, similar to restitution fines under Penal Code section 1202.4, subdivision (b), the imposition of these fines or assessments survives the revocation and termination of probation and should not therefore be imposed again if probation is revoked and terminated.
In both the assault and Oxycontin cases, the court assessed a court security fee in 2008 and 2009 at the time of conviction when probation was granted, and again on December 3, 2010, when probation was terminated and defendant was sentenced to prison. Thus, the $40 court security fees imposed in the assault and Oxycontin cases on December 3, 2010, must be stricken.
In the Oxycontin case, the court assessed a criminal conviction assessment fee under Government Code section 70373 at the time defendant was convicted and probation was granted in 2009. On December 3, 2010, when defendant's probation was terminated and he was sentenced to prison in this case, the court imposed a second criminal conviction assessment fee under Government Code section 70373. As a result, the second fee imposed on December 3, 2010, must be stricken.
In the assault case, a criminal conviction assessment fee under Government Code section 70373 was only imposed on December 3, 2010. In People v. Davis (2010) 185 Cal.App.4th 998, pages 1000 through 1001, the appellate court concluded fees imposed by Government Code section 70373 do not apply to cases in which the defendant was convicted before January 1, 2009, the effective date of the statute. Here, the record shows defendant was convicted in the assault case on September 26, 2008, so this fee does not apply under the facts of this case. We therefore agree with the parties' contention the $30 criminal conviction assessment fee imposed in the assault case under Government Code section 70373 on December 3, 2010, must be stricken.
DISPOSITION
In case No. SWF025324 (the assault case), the sentence is modified as follows to comply with the plea agreement: Defendant shall serve a total term of five years in state prison consisting of the low term of two years on the assault offense (§ 245, subd. (a)(1)), plus three years for the great bodily injury enhancement (§ 12022.7, subd. (a)).
In case No. SWF025324 (the assault case), the following fines and assessments imposed at the hearing on December 3, 2010, shall be stricken: The $200 restitution fine imposed under Penal Code section 1202.4, subdivision (b); the $40 court security fee imposed pursuant to Penal Code section 1465.8, and the $30 criminal conviction assessment fee under Government Code section 70373.
In case No. SWF028633 (the Oxycontin case), the following fines and assessments imposed at the hearing on December 3, 2010, shall be stricken: The $200 restitution fine imposed under Penal Code section 1202.4, subdivision (b); the $40 court security fee imposed pursuant to Penal Code section 1465.8, and the $30 criminal conviction assessment fee under Government Code section 70373. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.