Opinion
E066084
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. GARY LAJUEARN O'BANNON, Defendant and Appellant.
Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1503647) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry and L. Jackson Lucky IV, Judges. Affirmed in part and reversed in part with directions. Neil F. Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Gary Lajuearn O'Bannon appeals from the superior court's order finding him in willful violation of probation. On appeal, defendant argues (1) there was no evidence to support the trial court's finding he failed to willfully telephone the probation office; and (2) assuming the finding of a probation violation was willful, the trial court failed to knowingly exercise its discretion by mistakenly concluding it lacked the authority to reinstate him on probation with additional jail custody. We reject defendant's contention the trial court erred in finding defendant in willful violation of his probation. We, however, agree the matter must be remanded to allow the trial court to exercise its sentencing discretion.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing.
On July 14, 2015, defendant and the victim were at the Riverside County Family Courthouse to resolve some legal issues when defendant angrily threatened the victim by stating, " 'I'm going to beat your mother fucking ass if you don't tell me where my baby is.' " During the dispute, Riverside County Sheriff's deputies attempted to calm defendant down. Defendant, however, continued to scream obscenities, slapped a deputy's hand away, and resisted arrest.
On August 14, 2015, an information was filed charging defendant with making a criminal threat (Pen. Code, § 422; count 1), misdemeanor battery (§ 242; count 2), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). The information also alleged that defendant had suffered five prior prison terms (§ 667.5, subd. (b)).
All future statutory references are to the Penal Code unless otherwise stated.
On November 23, 2015, defendant pled guilty to count 1 and admitted two of the five prior prison term allegations. Defendant requested immediate sentencing, and pursuant to the plea agreement, the remaining allegations were dismissed. Additionally, defendant's imposed five-year sentence was suspended and he was placed on probation on various terms and conditions, including serving 365 days in county jail with a credit of 249 days for time served. Among other various probationary terms, defendant was required to enroll in a 52-week domestic violence program. A progress hearing was set for March 7, 2016, and defendant was ordered to return to court on that date to show proof of enrollment in the program. Defendant was also specifically warned that any violation could result in a five-year sentence, and failure to comply with the domestic violence terms would be a violation of his probation.
Defendant failed to appear at the domestic violence progress hearing on March 7, 2016. His probation was thereafter revoked and a bench warrant issued for his arrest.
Defendant was present at his probation violation arraignment on April 5, 2016. He denied violating his probation and a contested probation violation hearing was set for April 11, 2016.
At the April 11, 2016 hearing, Probation Officer Eric Ewing testified that defendant reported to the probation office as required, when he was released from his initial term of 365 days in custody in January 2016, and met with him. Officer Ewing told defendant to report daily to the probation office until a specific probation officer was assigned to him, or defendant had a permanent address, or defendant was told otherwise. Officer Ewing reviewed defendant's terms and conditions of probation with him and reminded defendant that he had a court-imposed deadline to enroll in a domestic violence class. As of the hearing date, according to probation department records, defendant had not enrolled in a domestic violence class or "checked into the probation department personally at all." On cross-examination, Officer Ewing clarified that when a defendant states he or she does not have a physical address, the defendant is instructed to check in at the probation department on a daily basis. Defendant had informed Officer Ewing that he did not have a residential address; that he was homeless; and that he was attempting to seek shelter.
The probation department maintained a management system that kept electronic documentation and notes on probationers.
Defendant testified that he reported to probation and met with Officer Ewing after he was released from his probationary custody and that Officer Ewing told him he needed to come back to the office each day. Defendant acknowledged that he did not return to the probation office the next day, but claimed he could not return because he did not have a residence or transportation. Defendant stated that he was living with family in Los Angeles and that he was looking for a residence or shelter but could not find any. He had tried to enter a homeless shelter but was turned down because of the active warrant for his arrest. He asserted that he did not intentionally fail to report to his probation officer, but that he could not report to probation because he had no shelter or transportation. Defendant acknowledged that he had a progress hearing in court on March 7, 2016, to show proof of enrollment in a domestic violence program, but claimed that he was not enrolled in a program by that date because he did not have any means of financial support. Defendant also admitted that he was required to enroll in a domestic violence class as a condition of probation and that he had not done so.
Following argument, the trial court found defendant was in willful violation of probationary term No. 23. The court stated that defendant could have telephoned the probation department to check in with them and informed them of his living situation; or that defendant could have placed himself on calendar on March 7, 2016, and informed the court or his attorney of his circumstances. The court noted that it had no evidence defendant was "really trying" to comply and explained that "it really was as simple as picking up the phone and checking with probation and saying, hey, look, you know what, I'm staying with family. I'm in LA County. I can't get there right now." The court thereafter terminated defendant's probation and sentenced him to five years in state prison with credit for time served. In sentencing defendant, the court stated: "And because I don't have any additional local time, I realize I do have the discretion to just reinstate him on probation without any additional time, but I am going to go ahead and impose the suspended sentence at this time." The court added, "I'm sorry that this had to happen to you today. I really, really am."
It appears term No. 23 required defendant to attend a domestic violence progress hearing on March 7, 2016 to show proof of enrollment in a domestic violence program.
As to not having any additional local time, the court was referring to defendant having already served the maximum one-year probation jail custody pursuant to section 19.2.
II
DISCUSSION
A. Violation of Probation
Defendant contends there was no evidence to support the trial court's finding that his violation of probation was willful. He bases this argument on contentions that the finding of willfulness was based solely on his failure to telephone the probation office about his failure to comply, and that the record contained no evidence that defendant failed to telephone the probation office.
Section 1203.2, subdivision (a), authorizes courts to revoke and terminate 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] . . . ." Trial courts have "great discretion" in determining whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445 (Rodriguez).) Reviewing courts give "great deference" to the trial court's decision, "bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]' [Citation.]" (People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke).) " '[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, supra, at p. 443.) "And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant. [Citation.]" (Urke, supra, at p. 773.)
Where the trial court has made factual findings, we apply the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) "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." (Ibid., fns. omitted.)
The facts supporting revocation of probation may be proved by a preponderance of the evidence. (Rodriguez, supra, 51 Cal.3d at p. 439.) The evidence, however, must support a conclusion that the probationer's conduct constituted a willful violation of the terms and conditions of probation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) "Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error." (Ibid.) A willful violation requires " 'simply a purpose or willingness to commit the act . . . ,' without regard to motive, intent to injure, or knowledge of the act's prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term 'willful' requires only that the prohibited act occur intentionally." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see People v. Valdez (2002) 27 Cal.4th 778, 787-788; People v. Atkins (2001) 25 Cal.4th 76, 85.) The requirement of a knowing or willful violation does not additionally require proof of defendant's awareness that his acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787-788; People v. Ramsey (2000) 79 Cal.App.4th 621, 632.)
Defendant argues the trial court's basis of finding him in willful violation of probation was that he failed to contact the probation office by telephone. The People argue the trial court's basis was defendant's failure to enroll in a domestic violence course. Both parties are mistaken. Although there was much discussion at the hearing about defendant's failure to maintain contact with the probation office and defendant's failure to enroll in a domestic violence course, the trial court specifically found defendant in violation of term No. 23. Term No. 23 appears to relate to defendant's failure to attend a domestic violence progress hearing on March 7, 2016, to show proof of enrollment.
Defendant's failure to have a permanent residence or financial means to pay for a domestic violence program did not prevent him from attending the hearing on March 7, 2016, or contacting the probation department, the court, or his attorney by telephone or letter that he was unable to attend the March 7, 2016 hearing. Defendant was released from county jail in January 2016, and had two months to inform the court, the probation department, or his attorney he was having difficulties due to his living and financial situations. The record shows defendant made no effort whatsoever to contact the probation office, the court, or his attorney to explain his circumstances and his inability to comply with the order to appear on March 7, 2016. On these facts, the trial court reasonably concluded that defendant's failure to attend the March 7, 2016 hearing was willful.
In his reply brief, defendant argues that due process "precludes revoking probation for failure to pay a monetary term of probation" and that his "indigency is precisely what prevented him from paying for or traveling to attend a domestic violence program, and so this failure cannot be deemed willful." However, the trial court did not fault defendant for his indigency, rather the court found defendant to be in willful violation based on his willful failure to attend the March 7, 2016 hearing, or at the very least, communicate with the court, his attorney, or the probation department as to why he was unable to comply with probationary term No. 23. --------
B. Sentencing Discretion
Defendant also contends that this case must be remanded for further proceedings because the trial court did not recognize its discretion to reinstate probation with additional local custody time. The People respond defendant forfeited this argument by failing to object at sentencing and to advise the court of its discretion. In the alternative, the People maintain any error was harmless because there is no reasonable likelihood the trial court would have reinstated defendant on probation as defendant showed no ability to successfully comply with the terms of his probation.
"Claims of error relating to sentences 'which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner' are waived on appeal if not first raised in the trial court." (People v. Brach (2002) 95 Cal.App.4th 571, 577, quoting People v. Scott (1994) 9 Cal.4th 331, 354 (Scott); see People v. Trujillo (2015) 60 Cal.4th 850, 856-859 [forfeiture rule applies to a defendant's failure to challenge imposition or the process, or lack thereof, of probation supervision and presentence investigation fees in trial court].) Our Supreme Court discussed forfeiture in People v. Smith (2001) 24 Cal.4th 849 (Smith) and explained: "As a general rule, only 'claims properly raised and preserved by the parties are reviewable on appeal.' [Citation.] We adopted this waiver rule 'to reduce the number of errors committed in the first instance' [citation], and 'the number of costly appeals brought on that basis' [citation]. In the sentencing context, we have applied the rule to claims of error asserted by both the People and the defendant. [Citation.] Thus, all 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (Id. at p. 852.)
The unauthorized sentence exception is "a narrow exception" to the waiver doctrine that normally applies where the sentence "could not lawfully be imposed under any circumstance in the particular case," for example, "where the court violates mandatory provisions governing the length of confinement." (Scott, supra, 9 Cal.4th at p. 354, fn. omitted.) As our high court observed: "We . . . created a narrow exception to the waiver rule for ' "unauthorized sentences" or sentences entered in "excess of jurisdiction." ' [Citation.] Because these sentences 'could not lawfully be imposed under any circumstance in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.] We deemed appellate intervention appropriate in these cases because the errors presented 'pure questions of law' [citation], and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Smith, supra, 24 Cal.4th at p. 852, quoting Scott, supra, 9 Cal.4th at p. 354, and People v. Welch (1993) 5 Cal.4th 228, 235.)
Here, we find the error complained of falls within the narrow exception to the forfeiture rule, since there is no factual issue as to the amount of time defendant served in county jail and the claim involves whether the trial court exercised its discretion on an erroneous understanding of the law. Defendant does not complain about the manner in which the court actually exercised its discretion, but rather claims the court did not exercise that discretion. " 'A ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]' [Citation.] 'Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]' [Citation.] Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. [Citations.]" (People v. Downey (2000) 82 Cal.App.4th 899, 912 (Downey); accord, People v. Leon (2016) 243 Cal.App.4th 1003, 1023; People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248 [trial court erroneously believed it lacked the discretionary power to grant probation].) Relief is warranted on direct appeal, however, only when the court's misunderstanding of its discretion is affirmatively reflected in the record. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945; People v. Rodriguez (1998) 17 Cal.4th 253, 257 [remand ordered where misunderstanding of scope of section 1385 discretion is affirmatively shown], superseded by statute on another ground as noted in People v. James (2001) 91 Cal.App.4th 1147, 1149.) We therefore reject the People's forfeiture argument.
Section 19.2 provides that a defendant may not be sentenced to county jail for more than one year as a condition of probation. Section 2900.5 provides that time spent in custody shall be credited only once to any custody imposed on the defendant. Because defendant had already spent 365 days in local custody, no further local custody could be imposed upon revocation and reinstatement of his probation. However, in People v. Johnson (1978) 82 Cal.App.3d 183 (Johnson), this court found that a defendant may specifically waive the right to custody credits under section 2900.5, provided that waiver is voluntarily and intelligently made. (Johnson, at pp. 187-188.) Such a " 'Johnson waiver,' " as our high court has explained, is a procedure by which "a sentencing court [is able] to reinstate a defendant on probation after he or she has violated probation one or more times, conditioned on service of an additional county jail term . . . ." (People v. Jeffrey (2004) 33 Cal.4th 312, 315.) A Johnson waiver thus allows a court, faced with a defendant's probation violation and as an alternative to revoking probation and imposing a state prison sentence, to reinstate probation, conditioned on service of additional county jail time, without running afoul of the sentencing proscriptions of section 19.2. These principles have been affirmed by our Supreme Court since Johnson was decided in 1978. (People v. Johnson (2002) 28 Cal.4th 1050, 1052-1055 [the California Supreme Court held that a defendant may, as a condition to being reinstated on probation, waive custody credit against a jail or prison sentence].)
In the present matter, based on a thorough examination of the record, it appears the trial court considered reinstating defendant on probation, but declined to do so after mistakenly concluding it could not do so because defendant had already served the statutory maximum of one year in local custody. The trial court's belief it did not have the option to reinstate defendant on probation while also imposing "additional local time" was incorrect in light of Johnson. After acknowledging the difficulty facing defendant as a homeless probationer, "hat[ing] these kinds of cases," and defendant thinking he "didn't even get a chance to comply with the terms of probation," the trial court stated: "And because I don't have any additional local time, I realize I do have the discretion to just reinstate him on probation without any additional time, but I am going to go ahead and impose the suspended sentence at this time." The trial court also sympathetically added, "I'm sorry that this had to happen to you today. I really, really am."
The record affirmatively reflects the trial court's misunderstanding that it had no discretion to reinstate probation, conditioned on service of additional county jail time, without running afoul of the sentencing proscriptions of section 19.2, pursuant to a Johnson waiver. Because the record affirmatively reflects the trial court did not exercise that discretion, remand for resentencing is required. (Downey, supra, 82 Cal.App.4th at p. 912; People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229 ["Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] 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."].)
The People argue that even if error occurred, any possible error was harmless because the trial court reasonably found there was no likelihood defendant would ever be successful on probation. In support, the People cite to the following comments made by the trial court: "my problem is if I release [defendant] on probation again, how do I have any idea that he's actually going to be able to successfully complete probation? It seems like he may have committed in good faith wanting to comply with the terms, but I don't know that he's able to comply with the terms." In response to the trial court's query, defense counsel informed the court that defendant had a family that had obtained residency for defendant and had paid the first month's rent.
Initially, we note the People do not cite to any authority for the proposition that a trial court's failure to exercise its sentencing discretion is subject to a harmless error standard of review. The law appears to be to the contrary. (See Downey, supra, 82 Cal.App.4th at p. 912.) In any event, as defendant points out, the trial court's comments here are in conflict with its expressed sympathy for defendant's situation and the court's pondering the possibility of reinstating defendant on probation. It appears the court was conflicted over the two extreme sentencing possibilities, i.e., reinstating defendant on probation with immediate release without additional custody time and imposing a five-year prison term where defendant's probation violation was based on his financial and living circumstances. Under the circumstances of this case, it is reasonably probable the trial court may have reinstated defendant on probation with additional custody time pursuant to a Johnson waiver if the court had understood that option. Accordingly, we reject the People's claim that remand is unnecessary.
III
DISPOSITION
The matter is remanded with directions to the trial court to exercise its discretion consistent with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.