Opinion
E067829
03-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JESUS JAIME MUNOZ, Defendant and Appellant.
Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR002454) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In February 2015, defendant and appellant Jesus Jaime Munoz pled guilty to one count of assault with a deadly weapon causing great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)), and one count of corporal injury to a cohabitant (§ 273.5, subd. (a)). In return, defendant was placed on formal probation for a period of three years on various terms and conditions, including serving 365 days in county jail.
All future statutory references are to the Penal Code unless otherwise stated.
After defendant violated several terms of his probation, in 2017 the trial court revoked defendant's probation and sentenced defendant to a total term of five years in state prison. On appeal, defendant argues the case must be remanded because the trial court failed to knowingly exercise its discretion when it mistakenly concluded it had no option to reinstate probation with additional local jail time. We find no error, and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the underlying offenses is taken from the probation report.
In December 2014, defendant punched the victim, the mother of his child, and choked her to the point where she felt like she was losing consciousness. The abuse lasted for six hours. Later that day, the victim decided to leave defendant while he was at work and invited a male friend over to the residence so that he could help her pack. Defendant returned early from work, assumed the victim was cheating on him with her male friend, picked up a souvenir baseball bat, and attempted to hit the victim. The friend intervened and blocked the bat with his arm, at which point defendant hit the friend with the bat and his hand. Defendant then choked the friend to the point where the male friend defecated on himself. After the friend was able to break free, he ran down the street as defendant chased after him, hitting him with the bat, and breaking the friend's car window.
On December 29, 2014, a felony complaint was filed charging defendant with attempted murder (§§ 664/187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 4), and felony vandalism (§ 594, subd. (b)(1); count 5).
On February 24, 2015, defendant pled guilty to counts 2 and 4, with an added allegation of great bodily injury on count 2 in violation of section 12022.7, subdivision (a). In return, the remaining charges were dismissed, and defendant was granted formal probation on various terms and conditions, including serving 365 days in jail. Defendant's maximum exposure was eight years in state prison.
On December 1, 2015, defendant's probation supervision was transferred to San Bernardino County.
On September 12, 2016, defendant was charged in case No. 16CR-056035 with misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)), and infractions consisting of expired registration (Veh. Code, § 4000, subd. (a)), no proof of insurance (Veh. Code, §16028, subd. (a)), and exceeding 65 miles per hour (Veh. Code, § 22349, subd. (a)).
On December 14, 2016, defendant failed to appear for arraignment on case No. 16CR-056035 and a bench warrant was issued for his arrest.
On January 4, 2017, a petition to revoke defendant's probation was filed alleging defendant violated the law, was not carrying proper identification, and did not cooperate with a field investigation by a peace officer. As grounds for the revocation, the petition referenced defendant's new case as well as information from a detective that defendant's car was involved in a hit-and-run incident, that defendant gave conflicting statements, and that defendant was "not cooperating with the investigation."
Erroneously date-stamped by the court as January 4, 2016, but signed by the judge on January 4, 2017.
On February 8, 2017, the probation department recommended that defendant serve seven years in state prison as a result of the violations.
On February 24, 2017, a contested probation revocation hearing was held. At that time, several witnesses and defendant testified. Mynisha Harris testified as follows; at 10:30 a.m. on November 8, 2016, Harris was stopped at a red light when her vehicle was hit with enough force to push her into the car in front of her. The white Toyota Corolla that struck Harris sped away from the scene with Harris in pursuit for approximately one mile. Harris described the driver as a heavyset Hispanic male with a beard who was around 28 to 31 years of age. As a result of the collision, Harris sustained vehicle damage and a back injury.
Shantel Bowen testified that she was a passenger in Harris's vehicle when it was struck. Bowen saw two males in the car and described the driver as being Hispanic. Bowen was three months pregnant at the time of the collision and "suffered from losing a child" as a result.
Although not elicited during the hearing, police reports provided to the court as part of defense counsel's briefing stated that the initial hospital Bowen visited did not attribute her miscarriage to the collision. However, a second opinion from another hospital and her personal doctor disagreed with the initial hospital's diagnosis. --------
Ashley Rosenberger, a criminal investigator for the San Bernardino Police Department, testified that she had contacted defendant regarding the collision. Defendant stated that he had given the Toyota Corolla to his child's mother and had not seen it since September. The child's mother subsequently told Rosenberger that she had no contact with defendant. When confronted with the conflicting statement, defendant then stated that he had been drunk at a party and that it was possible that someone used his vehicle, although he did not notice scratches on the front of the vehicle until the next morning. When asked to reveal the person who used his vehicle, defendant stated that he "wasn't a snitch" and was not going to name anyone at the party with him. Defendant also refused to give information regarding the collision to San Bernardino Police Detective Peck. Defendant eventually provided one name and one phone number that was disconnected.
Defendant's probation officer testified that defendant did not contact her after he was cited in 2016. Defendant also admitted that he did not have a valid identification card.
Defendant testified that he cooperated with the officers, even though he did not want to tell them who he was partying with and who took his car. Defendant stated that he did contact his probation officer regarding his infraction, and that he was directed to take care of it.
The trial court took judicial notice of defendant's traffic citation and failure to appear but did not take judicial notice of defendant's plea in the traffic matters.
Following argument, the trial court found by a preponderance of the evidence defendant violated term Nos. 1 (violate no law), 2 (carry a valid identification at all times), and 23 (submit to and cooperate in a field investigation by any peace officer).
When considering the sentence after revocation, the trial court initially stated: "I can't put him back on probation. He has no local time left. I can't. I guess the theory, I could impose no additional time; right? You can do that. I have some limited discretion." In response, the prosecutor argued that defendant should not be "placed back on probation," and requested defendant be sentenced to a total term of six years in state prison. Defense counsel requested the court exercise its discretion and impose the low term of two years. The court thereafter clarified as follows: "So the record is clear—I don't want to mislead anybody with my earlier comment—the Court does have discretion to place him back on probation. I don't think that's appropriate given the circumstances." The court terminated defendant's probation and sentenced defendant to a total term of five years in state prison with credit for time served. The court imposed a mitigated term of two years on counts 2 and 4, and noted, "I do believe I have discretion to stay the enhancement under 12022.7[, subdivision, ](a), and exercising the Court's discretion, I decline to do so." The court then imposed the additional three years for the section 12022.7, subdivision (a) enhancement. This appeal followed.
III
DISCUSSION
Defendant argues the case must be remanded because the trial court failed to knowingly exercise its discretion when it mistakenly concluded it had no option to reinstate probation with additional jail custody. Defendant relies on People v. Johnson (1978) 82 Cal.App.3d 183, 184-185 (Johnson), which grants the court authority to place a defendant back on probation and in jail for an additional year after exhausting local custody, to support his position.
"A probation violation does not automatically call for revocation of probation and imprisonment. [Citation.] A court may modify, revoke, or terminate the defendant's probation upon finding the defendant has violated probation. (§ 1203.2, subds. (a), (b)(1).) . . . [U]pon finding a violation of probation and revoking probation, the court has several sentencing options. [Citation.] It may reinstate probation on the same terms, reinstate probation with modified terms, or terminate probation and sentence the defendant to state prison. [Citations.] [¶] If the court decides to reinstate probation, it may order additional jail time as a sanction. [Citation.] If, instead, the court decides to terminate probation and send the defendant to state prison, . . . [and] if the court originally imposed a sentence and suspended execution of it, . . . the court must order that imposed sentence into effect. [Citations.]" (People v. Bolian (2014) 231 Cal.App.4th 1415, 1420-1421 (Bolian), italics omitted.) "[W]hen a judge suspends execution of a prison term, the message being conveyed is that the defendant is on the verge of a particular prison commitment. Nonetheless, upon violation and revocation of probation under such circumstances, the sentencing court retains discretion to reinstate probation." (People v. Medina (2001) 89 Cal.App.4th 318, 323; see Cal. Rules of Court, rule 4.435(a) ["When the defendant violates the terms of probation . . . or is otherwise subject to revocation of supervision, the sentencing judge may make any disposition of the case authorized by statute."].)
The Bolian court observed that the standard of review in such cases is abuse of discretion and explained: "The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court. [Citations.] 'It is axiomatic that when an issue entrusted to the trial court's discretion is properly presented to the court for decision, the court must exercise its discretion: In such a case a statement or other evidence that the court believes it has no discretion, but must rule in a certain way, indicates an error so fundamental as to be said to amount to a refusal to exercise jurisdiction.' (People v. Angus (1980) 114 Cal.App.3d 973, 987.) 'Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [(Brown)], quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)" (Bolian, supra, 231 Cal.App.4th at p. 1421, italics omitted; see People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 ["An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion"].) "Therefore, when the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion. [Citations.] We need not remand, however, when the record indicates the court was aware of its discretion or the record is merely silent on whether the court misunderstood its sentencing discretion. [Citation.]" (Bolian, at p. 1421; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)
The defendant in Bolian pleaded guilty to one count of possessing a deadly weapon (a billy club) (former § 12020, subd. (a)(1)), and admitted enhancement allegations that he had suffered two prior prison terms (§ 667.5, subd. (b)). (Bolian, supra, 231 Cal.App.4th at p. 1418.) The trial court sentenced the defendant to five years in prison, suspended execution of the sentence, and placed him on formal probation for five years. (Ibid.) Approximately 15 months later, the probation officer reported that the defendant had violated his probation by testing positive for marijuana use four times. (Ibid.) The probation officer recommended the court find a violation of probation and modify probation by ordering the defendant to complete a drug counseling program. (Ibid.) At a contested hearing on the violation, the probation officer testified that the defendant had also violated his probation by failing to complete community service that was ordered as a condition of probation. The probation officer revised his recommendation and suggested the court modify probation by ordering the drug counseling and a "suitable amount" of jail time. (Id. at pp. 1418-1419.)
At sentencing, the defendant in Bolian asked the court to follow the probation officer's recommendation. The trial court questioned whether the probation officer knew that the case involved a sentence in which execution of sentence rather than imposition of sentence had been suspended and whether the probation officer understood the differences between the two dispositions. The court said, " 'The difficulty is that it will be illegal for me to do, and the probation officer may not be aware of that. I would have to make a de minimis finding to do that. This isn't de minimis. And I can't. It would be illegal and improper. That's what an execution of sentence suspended is so a judge doesn't come in and undercut another judge.' " (Bolian, supra, 231 Cal.App.4th at p. 1419.) When the defense attorney stated it would not be illegal to reinstate probation when execution of sentence has been suspended, the court stated, " 'It is. That's why they do an ESS.' " (Id. at p. 1420.)
The appellate court concluded the trial court's "comments implied (1) it was illegal to reinstate and modify probation for violations that were more than de minimis, and/or (2) it was illegal to reinstate and modify probation when a sentence had been imposed but execution suspended. Neither was the case. Upon finding a probation violation, the court had the broad discretion to choose between reinstatement and termination. Moreover, whether the court had previously suspended imposition of a sentence or suspended execution of a sentence, the court still had the authority to choose between reinstatement and termination. [Citation.]" (Bolian, supra, 231 Cal.App.4th at p. 1422.) The appellate court stated that the difference between suspending imposition of sentence and suspending execution of sentence does not matter for the purpose of deciding whether to reinstate or terminate probation. "Only once the court rejects reinstatement and chooses termination will [that] difference . . . come into play." (Ibid.) The court concluded that a "fair reading of the [trial] court's comments demonstrates it was not aware of its discretionary power to reinstate and modify probation" and remanded "to give the court the opportunity to exercise its discretion." (Ibid.)
Defendant asserts that it is clear when the trial court's statements here are read in context, the court was unaware of its discretion under Johnson because (1) the court appeared to struggle between imposing additional custody time and a lengthy prison sentence, (2) the court here appeared to believe its discretion to place defendant on probation was "limited," and (3) neither party mentioned the procedure for waiving credit for time spent in custody under Johnson. Defendant argues the court misunderstood the law, and the matter must be remanded for an informed determination. He further asserts the harmless error analysis does not apply.
Defendant's contentions require us to analyze the trial court's statements at sentencing. Certain presumptions also inform our analysis. "On appeal, we presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant. [Citations.] Thus, we may not assume the court was unaware of its discretion simply because it failed to explicitly refer to its alternative sentencing choices. [Citations.]" (People v. Weddington (2016) 246 Cal.App.4th 468, 491-492 (Weddington); Bolian, supra, 231 Cal.App.4th at p. 1421.)
In the present matter, the record shows the trial court was aware of its sentencing discretion to reinstate defendant on probation or to sentence defendant to prison. In fact, the trial court specifically clarified for the record that it had the "discretion to place [defendant] back on probation," but that it did not consider it appropriate under the circumstances of the case. Furthermore, after imposing a low two-year term on counts 2 and 4 the court specifically noted that it had the discretion to stay a three-year enhancement and declined to do so. Unlike the court in Bolian, which stated it would be "illegal and improper" for the court to reinstate probation unless the court made a de minimis finding (Bolian, supra, 231 Cal.App.4th at pp. 1421-1422), the court here did not say reinstatement was illegal or improper or that it did not have the discretion to reinstate probation.
The fact that the court's remarks were brief and did not set forth all of the available sentencing options, such as discuss the procedure articulated in Johnson, does not support the conclusion that the court was unaware of those options or the scope of its discretion. As we have explained, we may not assume the court was unaware of its discretion simply because it failed to explicitly mention its alternative sentencing choices. (Weddington, supra, 246 Cal.App.4th at pp. 491-492.)
In analyzing the trial court's words, it is important to note that unlike Bolian where the probation officer recommended reinstating probation with modified terms—the probation officer in this case recommended terminating probation and sending defendant to prison. The court had that recommendation in mind when it heard defendant's explanation of the probation violation. The court's initial remarks that it could not put defendant back on probation because defendant had no local time left or it had some "limited discretion" are not sufficient to persuade us that the court either did not understand the range of sentencing options available or felt its hands were tied because defendant was granted probation with execution of sentence suspended. On this record, we cannot say the court misunderstood the scope of its sentencing discretion when it terminated defendant's probation and imposed a prison sentence.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.