Opinion
A160414
12-16-2021
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROBERT KELLER, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 16-NF-001339-A)
Richman, J.
Defendant William Robert Keller appeals from a judgment after a jury convicted him of three misdemeanors: one count of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) and two counts of contempt of court for violating a protective order (§ 166, subd. (c)(1)). At issue on appeal are two alleged sentencing errors: first, whether the trial court imposed an unlawful "hybrid" sentence consisting of imprisonment in county jail on two counts, combined with probation on the remaining count in the same case, and second, whether the five-year probationary term imposed was unauthorized.
All further undesignated statutory references are to the Penal Code.
With respect to the first contention, because the appellate record is ambiguous as to the sentence the trial court intended to impose, a remand is appropriate to permit the trial court to clarify its sentence. As for the second contention, we agree with both parties that the five-year probationary term imposed was unauthorized, and since we are already remanding, we also instruct the trial court to modify the probation term accordingly. In all other respects, we affirm the judgment.
BACKGROUND
In August 2016, an information charged defendant with one felony, resisting an executive officer (§ 69) (count 1), and three misdemeanors, resisting a peace officer (§ 148, subd. (a)(1) (count 2) and contempt of court for violating an order that he stay away from his grandmother (§ 166, subd. (c)(1)) (counts 3 and 4). In March 2017, a jury acquitted defendant of count 1 and found him guilty of counts 2, 3, and 4.
On June 16, 2017, the trial court held a sentencing hearing and announced its decision as follows: "For violation of Count 2, Penal Code Section 148, probation is denied. Defendant will be sentenced to serve one year in the County Jail, consecutive to the amount of time in the sentence imposed in 363. There are no credits.
At the sentencing hearing, defendant pleaded guilty to a DUI offense in another case (No. 16NM007363) and was sentenced to one year in county jail and ordered to pay victim restitution. The court ordered defendant's sentence on the present offenses to run consecutively to the one-year sentence in the other case, for a total term of three years, and that he pay victim restitution for the other case as "part of the probation that [he was] going to be on in the [present] case."
"With respect to Count 3, probation is denied. Defendant will be sentenced to serve one year in the County Jail, consecutive to Count 2, and consecutive to 363. No credits for time served.
"Count 4, Defendant will be placed on probation to the Adult Probation Department for a period of five years under [certain] terms and conditions." These included that defendant serve 200 days in county jail with credit for time served of 200 days, obey an order prohibiting him from contacting his grandmother and mother, and pay victim restitution in connection with the DUI offense in his other criminal case. The court also ordered defendant to pay certain fines and fees.
Defendant filed a timely appeal.
On January 7, 2019, while this appeal was pending, defendant was released from San Mateo County Jail and ordered to participate in the Bridges Program, which appears to be a substance abuse treatment program. And on December 6, the court found defendant had successfully completed the Bridges Program.
DISCUSSION
In his opening brief, defendant's sole contention was that the five-year term of probation must be reduced in light of Assembly Bill No. 1950 (2019- 2020 Reg. Sess.), which, effective January 1, 2021, amended section 1203a to limit the probation term for misdemeanor offenses to one year. (Stats. 2020, ch. 328, § 1; § 1203a.) However, in his reply brief, defendant conceded that Assembly Bill No. 1950 does not apply to his case, thereby abandoning the claim.
And appropriately so. Section 1203a, subdivision (b) states "[t]he one-year probation limit in subdivision (a) shall not apply to any offense that includes specific probation lengths within its provisions." The People correctly note that section 166, subdivision (e)(1) provides that a court shall impose probation on a violation of section 166, subdivision (c)(1) consistent with Section 1203.097. That provision states the minimum probation term for a person convicted of a crime "in which the victim is a person defined in Section 6211 of the Family Code" is 36 months. (§ 1203.097, subd. (a)(1).) Section 6211 of the Family Code defines "domestic violence" to include abuse against "[a]ny other person related by consanguinity or affinity within the second degree." (Fam. Code, § 6211, subd. (f).) Here, defendant's offenses under section 166, subdivision (c)(1) were based on violating a no contact-order protecting his grandmother, who is related to him "within the second degree." Thus, because defendant's offenses include a specific probation length within its provisions, Assembly Bill No. 1950 does not apply to his case. (§ 1203a, subd. (b).)
This leaves us with the People's two challenges to the legality of the sentence: first, that the court lacked authority to impose a "hybrid" sentence of imprisonment on counts 2 and 3, combined with probation on count 4 in the same case, and second, that the five-year probation term exceeded the maximum term allowable under the law in effect at the time of defendant's offenses. Defendant disagrees with the first point, but agrees with the second. We address each in turn.
Hybrid Sentence
The People characterize defendant's sentence as "a term of probation to be imposed consecutively to a jail or prison term." Such a "hybrid sentence," they argue, is not permitted by any statutory authority.
We are not aware of any authority permitting a trial court to impose imprisonment on some counts while at the same time granting probation on other counts in the same case. As the People correctly note, section 1203, subdivision (b)(3), provides that a trial court shall "determine . . . the suitability of probation in the particular case" (italics added), and makes no reference to a court determining the suitability of a defendant with respect to individual counts in a case. The People also explain that section 1203, subdivision (b)(3) refers to a binary choice-a trial court shall either "place the person on probation" or determine that "probation is [to be] denied." (See § 1203, subd. (b)(3) ["If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections and Rehabilitation at the prison or other institution to which the person is delivered"].)
The People also note that section 669, the primary statute governing consecutive sentences, refers to a consecutive term exclusively as a term of imprisonment and does not contemplate a term of probation to run consecutive to a term of imprisonment. Section 1203, subdivision (a), on the other hand, defines "probation" as "the suspension of the imposition or execution of a sentence . . . ." (Italics added.) The People thus maintain that "[b]ecause a judgment granting probation is not an executed sentence, it is not subject to being cumulated with an executed sentence of imprisonment or jail."
The People argue that its reading of statutory law is consistent with two cases considering the legality of a hybrid sentence: In re Nichols (1927) 82 Cal.App. 73 (Nichols) and People v. Cramer (1983) 149 Cal.App.3d 1135 (Cramer). In Nichols, the defendant was sentenced to a prison term on one count and granted probation on another count. (Nichols, supra, 82 Cal.App at p. 74.) The Nichols court held that the sentence was invalid, reasoning: "[T]he defendant could not be under a sentence to the state prison and at the same time be either released on probation or remanded to the custody of the sheriff to be confined in the county jail. The two respective conditions of the judgment are so opposed one to the other that neither is capable of enforcement without doing extreme violence to, if not destroying, the other." (Id. at p. 82.) In Cramer, the trial court stayed an order of probation and ordered it to be served consecutively to a state prison term. (Cramer, supra, 149 Cal.App.3d at p. 1138.) The reviewing court determined no decisional or statutory authority permitted such a stay and explained it would be "incongruous" for an ex-prisoner to be placed simultaneously under parole and probationary supervision upon his release from prison. (Ibid.) As defendant explains, these cases are distinguishable and thus unhelpful. Here, defendant was not sentenced to any term in state prison and therefore there is no problem of overlapping jurisdiction by the Department of Corrections and the local probationary department.
While defendant does not dispute the People's interpretations of the relevant sentencing statutes, he disagrees that his sentence clashes with those statutes. He contends that the court did not impose a hybrid sentence, but rather granted him probation in his case as a whole, with a total of two years and 200 days (with credit for time served) to be served in county jail as a condition of probation-a sentence he claims is expressly permitted under section 1203.1. Defendant explains, "Although the court, in its oral pronouncement of judgment, itemized the jail time which defendant was to serve by specific counts, and the term of probation was described as applying to count 4, the trial court essentially, if somewhat inartfully, sentenced defendant to probation with a county jail component."
Section 1203.1, subdivision (a) provides: "The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case."
The transcript of the sentencing hearing is ambiguous as to the sentence the court intended to impose. As defendant acknowledges, the court did not state that he was suitable for probation with respect to his case as a whole and instead made that determination as to each count in the case. Nor did the court state that the two one-year jail terms imposed as to counts 2 and 3 were to be served as a condition of probation. In fact, when the court discussed the "terms and conditions" of probation in connection with count 4, it imposed a separate county jail term of 200 days (with credit for time served) and did not mention the two one-year jail terms attached to counts 2 and 3. These portions of the hearing could be interpreted as the court imposing a hybrid sentence of imprisonment and probation. However, ambiguity was created when the court concluded the hearing by asking defendant, "Do you understand and accept these terms and conditions of probation?" without clarifying which terms and conditions it was referring to.
The sentencing minute order does not provide greater clarity. On one hand, as defendant points out, the fact that the order refers to his sentence as a "Probation Sentence" might suggest that the court intended to grant probation in his case as a whole, not as to individual counts. (See § 1203, subd. (b)(3).) On the other hand, the minute order, like the sentencing hearing transcript, later indicates that probation was granted only with respect to count 4. Moreover, although defendant points out the order describes the county jail terms imposed for each count as a "confinement and detention component," the use of the word "component" does not necessarily support his interpretation that the jail terms were imposed as a condition or "component" of probation, since the grant of probation provided as to count 4 is also referred to as the "probation component."
Based on the record, we cannot be certain whether the trial court intended to order defendant to serve the county jail terms as a condition of probation or to impose an unauthorized hybrid sentence. In light of the difficulty in discerning the court's intent, we believe it is appropriate to remand the matter to permit the court to clarify defendant's sentence and cure the ambiguity in the record. (Cf. In re Dupper (1976) 57 Cal.App.3d 118, 122, unnumbered fn. ["We consider it highly preferable for the sentencing judge to impose an unambiguous sentence rather than one requiring interpretation"]; People v. Clancey (2013) 56 Cal.4th 562, 578 [where record was ambiguous as to the sentence imposed, "the proper remedy is a conditional reversal with directions to the trial court on remand to resolve the ambiguity"].)
Term of Probation
Assuming the trial court did not issue an unauthorized hybrid sentencing order, the parties agree, as do we, that the trial court erred in granting a five-year term of probation.
At the time of defendant's sentence, section 1203a provided that the maximum period of misdemeanor probation was either three years or the maximum sentence of imprisonment, if longer than three years. (Former § 1203a.) This limitation applies to the entire sentence and not to each individual conviction. (See Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 84.) In this case, the maximum sentence of imprisonment that could have been imposed for the single violation of section 148, subdivision (a)(1) and two violations of section 166, subdivision (c)(1) was three years. And since, as noted, Assembly Bill No. 1950's one-year limitation for misdemeanor probation terms does not apply to this case, the maximum term of probation that the court could have imposed was three years. (See § 1203a, subd. (b).) It follows that the imposition of the five-year probation term was unauthorized.
Because we are already remanding the matter for clarification of the sentence, we also remand to allow the trial court to make the appropriate modification to the probation length. Remanding the matter will also afford the trial court the opportunity to adjust, modify, or strike the original terms and conditions of probation as necessary to take into account the shortened probationary period and defendant's status on probation.
DISPOSITION
The matter is remanded with directions to the trial court to (1) clarify the sentence, (2) make the appropriate modification to the probationary length, (3) prepare an amendment sentencing minute order to reflect the clarification and modification, and (4) forward a copy of the amended order to the appropriate authorities. In all other respects, the judgment is affirmed.
We concur: Kline, P.J., Stewart, J.