Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA053914, Bruce F. Marrs, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Leonel Ledemsa pled guilty to one count of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). The trial court sentenced him to the upper term of 11 years in state prison, but suspended sentence and placed him on formal probation for a period of five years. While on probation, appellant pled guilty to one count of passing a counterfeit bill in violation of section 475, subdivision (a). A probation revocation hearing was then held in the manslaughter case, and appellant's probation was revoked. The previously suspended term of 11 years was executed.
Appellant appeals from the judgment of conviction, contending that the trial court abused its discretion in revoking his probation and imposing the previously suspended sentence. We affirm the judgment of conviction.
Procedural facts
In January 2002, appellant was charged with one count of murder and two counts of attempted murder. Pursuant to a plea agreement, he pled guilty to one count of voluntary manslaughter. The trial court imposed, then stayed the upper term of 11 years in state prison, and placed appellant on formal probation for a period of five years.
Appellant was 20 years old when placed on probation, and was a gang member. His family moved to Bakersfield to get him away from his gang environment. There, he worked steadily for various painting contractors.
In October 2005, appellant was arrested for driving under the influence of alcohol. He completed an alcohol rehabilitation program in March 2006. In July 2006, following a probation revocation hearing, appellant was reinstated on probation.
In May 2007, appellant was arrested for passing a counterfeit bill. He pled guilty to the charge. He subsequently contended that he did not realize that the guilty plea could lead to the revocation of his probation. He also claimed that he did not know that the $100 bill was forged and could not remember who gave him the bill.
Discussion
Appellant contends that the trial court did not exercise an informed discretion in deciding the outcome of his probation revocation hearing. He claims that the court was not aware that it had discretion to reinstate probation and impose jail time in connection with that reinstatement, and that the resulting sentence was a violation of his right to due process. We do not agree.
"'Upon the decision to revoke probation, the trial court has three available options: to reinstate probation on the same terms; to reinstate probation on different terms; or to terminate probation and commit the probationer to prison pursuant to the original sentence.'" (People v. Medina (2001) 89 Cal.App.4th 318, 322.)
Appellant's argument that the trial court was unaware of its discretion relies almost entirely on the trial court's reference to People v. Howard (1997) 16 Cal.4th 1081. The issue before the Court in Howard was whether a trial court could modify a sentence previously imposed but stayed as part of a defendant's probation, if the defendant's probation was subsequently revoked. The Supreme Court found that a trial court could not make such a modification.
We see nothing in the trial court's reference to Howard which suggests that the court was unaware of its discretion to reinstate probation. The trial court's ruling was long and detailed. The court did begin by referring to Howard, noting that the case held that "the court has no authority on revoking probation to impose a lesser sentence than that which was originally previously imposed." The trial court then summarized the counterfeit bill guilty plea which had triggered the hearing. The court next turned to the DUI offense committed by appellant while on probation, and noted that the judge in that case had stated: "I'm going to reinstate him, same terms and conditions. We will keep a record of his violations. If there's another one, he's going to cut his own throat on this case." The court commented, "Sounds pretty clear the court was indicating that if the defendant picked up any case, any time, anywhere, the court was inclined to provide the suspended sentence." The court summarized the testimony of appellant and his girlfriend at the current hearing concerning the counterfeit bill charge, and found that "[t]aken as a whole, the testimony of the defense witnesses is inherently unbelievable." The court also noted that the "[p]robation officer tells us that continued supervision by probation is inappropriate due to the defendant's commission of criminal acts."
The trial court's remarks show clearly that it was aware of its discretion to reinstate probation. The court noted that a judge had previously reinstated probation on the "same terms and conditions." This suggests that the court was aware that a trial court may modify the terms and conditions of probation.
Appellant points out the probation officer's statement that she was "very uncomfortable" with an 11 year prison sentence. He contends that this statement strongly suggests that the probation officer recommended probation and county jail time as the proper response for the court. We do not agree.
The probation officer said, "I feel that continued probation is inappropriate because he continued to commit criminal acts, but I am – I am very uncomfortable with 11 years state prison." The probation officer had 37 years of experience. We have no doubt that if she thought that continued probation was appropriate with modified terms, she would have said so. She did not.
Since the trial court was aware of the full scope of its sentencing discretion, we see no violation of appellant's right to due process. Appellant was not treated with "fundamental unfairness."
To the extent that appellant contends that his punishment constitutes cruel and unusual punishment, we do not agree. Assuming for the sake of argument that this claim was not waived, we would find that 11 years is not a disproportionate punishment for participating in a gang-related killing. Appellant agreed to the imposition of the term, apparently in order to be placed on probation. Appellant was given ample opportunity to succeed on probation. Probation was revoked only after he sustained a second misdemeanor conviction. That conviction showed a continuing involvement in criminal activity.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.