Opinion
C085790
06-03-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC MAURICE MCCLAIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05024)
Defendant Eric Maurice McClain challenges the trial court's imposition of a four-year state prison sentence after finding true allegations he violated the terms and conditions of his probation. The People argue defendant forfeited his claim and, in any event, there was no error. We affirm the judgment.
FACTS AND PROCEEDINGS
Defendant and his wife, J.M., have five children. Ja.M. is the oldest of the children.
On December 17, 2014, defendant pleaded no contest to felony child abuse (Pen. Code, § 273a, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated) involving Ja.M., who was 13 at the time. The trial court granted defendant five years of formal probation subject to express terms and conditions, including that defendant serve 150 days in county jail (less 12 days of credit for time served) and "seek and obtain professional counseling through and under the direction of the probation officer." The terms and conditions of defendant's probation also included the directive that defendant obey all laws, follow the instructions of his probation officer, and report to the probation department as directed.
On April 5, 2016, the prosecution filed a petition for violation of probation alleging defendant violated sections 273a, subdivision (a), 647, subdivision (f), and 422.
On June 2, 2016, defendant admitted the alleged probation violations. The court revoked and reinstated probation, ordered defendant to serve 124 days in county jail with credit for time served, and imposed but suspended execution of a middle term sentence of four years subject to the following terms and conditions:
"I find you in violation based on your admission, revoke your probation and reinstate it, impose a four-year state prison sentence but suspend the execution of that sentence, order that you serve 120 days with credit time served, 60 plus 60.
"You are, as a condition of your probation, to serve and participate in the 52-week parenting class and to present proof of enrollment in that class on June 9th at 4:30 in this department.
"As additional conditions of probation, you are to participate in the treatment program as outlined by [the prosecution].
"Restating, one-year outpatient at Strategies for Change. The requirement would be participation in three sessions per week for the first six months. I believe we stated an hour and a half session for that period for each.
"For the next or final six months, you're to participate in after care for 1.5 days a week."
* * *
"So if you violate the terms of your probation or you fail to enroll or participate fully in these treatment programs, you can expect that you will be going to prison, because that's the sentence that's been imposed.
"However, if you're successful in addressing all of those issues and the terms, come back in a year when it's all completed.
"And as [the prosecution] has indicated, the Court will simply indicate that you're on all just standard terms [and] conditions, and recall the state prison sentence." Defendant acknowledged he understood and accepted the terms and conditions of his probation.
On June 9, September 15, and December 22, 2016, defendant presented proof of his completion of the court-ordered 52-week parenting program.
On January 12, 2017, the prosecution filed a second petition for violation of probation alleging defendant violated section 273a, subdivision (a) as follows: On September 1, 2016, defendant began punching and biting Ja.M. When defendant and Ja.M. fell to the ground, defendant used his arm to strangle Ja.M., preventing him from breathing. Defendant fled the scene prior to the arrival of law enforcement. Ja.M. was transported to the hospital for medical treatment.
On March 9, 2017, the court received proof that defendant completed the required 52-week parenting and outpatient programs. However, defendant's counsel informed the court that defendant had a no-bail arrest warrant for a violation of probation that occurred on September 1, 2016 and asked that the matter be continued to allow counsel to contact defendant and notify him of the pending court date. In the meantime, the parties stipulated that defendant completed his parenting classes and Strategies for Change program. In that regard, the following colloquy took place between counsel, the court, and the court clerk: "[COURT]: All right. So we'll show that that proof has been provided. "[CLERK]: And then the four years is permanently stayed? "[DEFENDANT'S COUNSEL]: Yes. "[PROSECUTION]: For the parenting class issue, we'll tackle the subsequent VOP, I guess, on Tuesday. "[COURT]: Is the warrant in a different case or [the] same case? "[DEFENDANT'S COUNSEL]: Same case. "[PROSECUTION]: It wasn't in my file. "[COURT]: It happens. Okay. Thank you." The proceedings were then concluded.
The court's minute order reflected the court's acceptance of documentation showing defendant's completion of the 52-week parenting program and the Strategies for Change outpatient program, and stated, "SP 4 y suspended permanently." The order also stated, "Unbeknownst to parties deft had an arrest warrant," noting counsel would contact defendant and the matter was continued to March 14, 2017 "re Arrest Warrant."
On April 27, 2017, the probation department filed a third petition for revocation of probation alleging defendant (1) failed to contact the probation department within 48 hours of his court date or release from custody, (2) failed to keep the probation officer notified of his whereabouts since March 11, 2017, and his whereabouts remained unknown, and (3) failed to keep a scheduled appointment on March 28, 2017. Defendant was remanded into custody.
On August 29, 2017, the court found true the allegations in the January 12 and April 27, 2017 petitions for violation of probation and revoked defendant's probation.
On October 13, 2017, the court denied defendant's request to reinstate probation and executed the previously-imposed but suspended four-year prison sentence. The court awarded defendant 587 days of presentence custody credit.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court permanently stayed the previously suspended four-year prison sentence and therefore lacked the authority to impose the four-year sentence following his violation of the conditions of his probation. He asserts the court was limited to imposition of additional jail time or some other authorized sanction for the probation violations. The People argue defendant forfeited his claim for failure to raise it in the trial court. Alternatively, the People argue the trial court did not abuse its discretion in imposing the four-year prison sentence in light of defendant's violation of the other terms and conditions of his probation. Without deciding the forfeiture issue, we find defendant's claim lacks merit.
Section 1203.2 provides, "Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, 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." (§ 1203.2, subd. (c); see People v. Howard (1997) 16 Cal.4th 1081, 1094.)
Thus, a trial court may revoke and terminate probation, but it must then order execution of the originally imposed sentence; it has no jurisdiction to do anything other than order the exact sentence executed. (See § 1203.2, subd. (c); People v. Howard, supra, 16 Cal.4th at pp. 1087-1088; People v. Martinez (2015) 240 Cal.App.4th 1006, 1017.)
At the June 2, 2016 hearing, the court found defendant violated the terms of his probation, revoked and reinstated probation, and imposed but suspended execution of a four-year state prison sentence. Included in the terms and conditions of probation was the requirement that defendant participate in and complete a 52-week parenting class and a one-year Strategies for Change outpatient program. Also included was the requirement that defendant obey all laws. In that regard, the court stated, "So if you violate the terms of your probation or you fail to enroll or participate fully in these treatment programs, you can expect that you will be going to prison, because that's the sentence that's been imposed."
Defendant claims the court agreed to "recall his prison sentence and have him continue on probation with the standard terms" once he completed the required 52-week parenting class and the Strategies for Change outpatient program. Not so. The court's statements make plain that suspended execution of the state prison sentence was contingent upon defendant's adherence to all of the terms and conditions of his probation, not just completion of the parenting and outpatient programs.
Thereafter, on March 9, 2017, the court received proof of defendant's completion of the parenting and outpatient programs and was informed defendant, who was not present, had an arrest warrant pending for a September 1, 2016 violation of probation. Acknowledging defendant completed the required programs, the court continued the matter to address defendant's outstanding warrant. Defendant was eventually remanded into custody, but only after yet another petition for revocation of probation was filed. At that point, the court had only two options: revoke and reinstate probation or execute the previously-suspended prison sentence. (See § 1203.2, subd. (c); People v. Howard, supra, 16 Cal.4th at p. 1094; People v. Scott (2014) 58 Cal.4th 1415, 1423-1424.) The court eventually found true the various alleged probation violations, revoked defendant's probation, and executed the previously-imposed but suspended four-year prison sentence.
In a variety of arguments, defendant claims the court "permanently suspended" his previously-suspended prison sentence after he completed the parenting and outpatient programs. Defendant's arguments are unavailing.
First, defendant asserts his June 2, 2016 admission to the alleged probation violations was akin to a plea agreement whereby he agreed that, once he completed the parenting and outpatient programs, the previously-suspended prison sentence would be "permanently suspended." He argues he fulfilled his end of the bargain by completing those programs and the court permanently suspended the prison sentence accordingly. Therefore, imposition of a new four-year prison term for probation violations thereafter exceeded the court's authority and deprived him of the benefit of his bargain. The record belies defendant's self-serving characterization of the facts.
Defendant's assertion that the court "permanently suspended" his sentence is untenable. We note the statement in the March 9, 2017 minute order that the "SP 4 y suspended permanently" is clearly a clerical error, as the court never orally pronounced the four-year sentence to be permanently suspended. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) In any event, the court could not have made such a pronouncement. As previously discussed, the court accepted proof of defendant's completion of the programs at the March 9, 2017 hearing but continued the matter to address defendant's outstanding arrest warrant based on a 2016 probation violation. Once that issue was addressed and a determination made as to whether defendant violated any of the conditions of his probation, the court then had two options: revoke and reinstate probation or execute the previously-imposed but suspended prison sentence. The court chose the latter.
Next, as defendant properly concedes, a plea bargain "is a contract between the accused and the prosecutor." (In re Ricardo C. (2013) 220 Cal.App.4th 688, 698.) Defendant claims the bargain to which the parties agreed called for permanent suspension of the four-year prison sentence once he completed the parenting and outpatient programs without taking into account his adherence to the remaining terms and conditions of probation, namely, to obey all laws. The People made no such agreement, as evidenced by the prosecutor's clarifying response to the court clerk's inquiry whether the four-year sentence should be permanently suspended upon proof of defendant's completion of the parenting and outpatient programs: "For the parenting class issue, we'll tackle the subsequent VOP, I guess, on Tuesday." And, as plainly set forth in the record, defendant was subject to an arrest warrant for alleged probation violations that occurred on September 1, 2016, well before the court accepted proof of completion of the required 52-week parenting and outpatient programs.
Finally, defendant claims that, after ordering the four-year prison term permanently suspended, the trial court was limited to imposing additional jail time "or some other authorized sanction" for probation violations both before and after permanently suspending the sentence. He cites People v. Bolian (2014) 231 Cal.App.4th 1415 as support for his claim. Again, as previously discussed, the People never agreed to, and the court never ordered, permanent suspension of the sentence, nor was there any agreement that defendant's completion of the parenting and outpatient programs was all that was required to comply with the terms of his probation. Where, as here, the court decides to terminate probation and send defendant to state prison, and where, as here, the court originally imposed a sentence and suspended execution of it, "upon revocation and termination of probation, the court must order that imposed sentence into effect" and "ordinarily has no authority to impose a lesser sentence in such a case. [Citation.]" (Id. at pp. 1420-1421.) Here, despite having completed the 52-week parenting program and the outpatient program, defendant failed to abide by all the other terms and conditions of his probation, including that he obey all laws. Therefore, the court found true the allegations of probation violation, properly terminated probation, and executed the previously imposed but suspended sentence.
The trial court did not err in executing the previously-imposed four-year prison sentence.
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
DUARTE, J.