Opinion
E068637
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTIN PICENO, Defendant and Appellant.
Kristen Owen, 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, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR033107) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Kristen Owen, 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, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Martin Piceno guilty of unlawfully causing a fire to a structure or forest (Pen. Code, § 452, subd. (c)). The trial court imposed and suspended an aggravated three-year sentence, and placed defendant on formal probation for a period of three years on various terms and conditions of probation. On appeal, defendant contends the case must be remanded for resentencing because a presentence report was not prepared before sentencing. For the reasons explained below, we reject defendant's contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
On June 23, 2016, at approximately 12:27 p.m., three witnesses saw defendant walking away from a brush fire on a slope adjacent to Baseline Street in Highland, California. The witnesses did not see any other people in the area. San Bernardino Sheriff's Deputy Kuskowski was one of the witnesses. After speaking with a witness, Deputy Kuskowski detained defendant. Deputy Kuskowski searched defendant, but did not find any lighter or butane fluid, matchbooks, cigarettes, or any other sort of devices on defendant's person.
Fire investigators located the spot of origin of the fire. The fire investigators ruled out all possible causes for the fire, such as weather, cigarette, electrical equipment, campfires, or downed power lines, except for arson. They did not see anything but burnt material at the ignition area of the fire, and explained that wildland fires are often started by an open flame. In this case, the fire investigators believed the fire to be arson caused by an open flame. They did not observe any evidence of an accelerant or ignitable liquid at the scene.
On October 14, 2016, the People filed an information charging defendant with one count of felony arson of a structure or forest (§451, subd. (c)).
On February 21, 2017, the trial court declared a doubt as to defendant's mental competence to proceed to trial. The court then suspended criminal proceedings and appointed a psychologist to examine defendant's mental competency.
On April 3, 2017, based on the psychological report, the court found defendant mentally competent to stand trial and reinstated criminal proceedings.
Following trial, on June 1, 2017, a jury found defendant guilty of the lesser included offense of unlawfully causing a fire to a structure or forest in violation of section 452, subdivision (c). After the jury left the courtroom, the trial court stated that it wanted to conduct the sentencing hearing "right now," so that defendant could be released immediately. Defendant's trial attorney, however, requested that the offense be reduced to a misdemeanor pursuant to section 17, subdivision (b), "considering [defendant]'s lack of an extensive felony criminal history." Defendant's trial attorney also informed the court that defendant had five children living in the city of Colton and that defendant worked "at kind of construction, manual labor, temp agency." Defense counsel also noted, "I did see misdemeanors. Some of them, at least one, was an actual conviction for drug possession, and there was a misdemeanor DUI among other misdemeanors. [¶] And I would note for the record that the case has been brought up, but he was acquitted of this other arson allegation matter. And that should be taken into consideration, that it was an acquittal, not a conviction." Defense counsel further noted defendant's eligibility to mental health court, as well as the prosecutor's plea offer, which included a misdemeanor offer.
The prosecutor replied, "I guess the only thing I would add, not for punishment purposes, for safety of the community, and obviously the conduct we have here, having the defendant supervised under, I guess, some sort of formal probation time, to check in with the probation officer, to check in for the arson conduct, I mean, we are entering basically in the summer months."
The trial court suggested that the prosecutor and defense counsel negotiate a resolution in the case that would "give him supervision for some period of time, and have it automatically reduced to a misdemeanor if he succeeds on the supervision." Discussions were thereafter held off the record. When the parties reconvened, defense counsel stated that the People were willing to have defendant placed on probation for 18 months and reduce the offense to a misdemeanor after that. However, defendant wanted the trial court to make a ruling whether to reduce the offense to a misdemeanor pursuant to section 17, subdivision (b), and to consider the amount of time defendant had spent in custody since September 2016. Defense counsel also informed the court that reduction of the offense to a misdemeanor would terminate all supervision over defendant because he had already been in custody for 268 days which, with conduct credit, exceeded one year of imprisonment.
The trial court stated that it was willing to entertain a motion to reduce the offense to a misdemeanor, but first wanted a report from the probation department. The court did not believe the probation department could get the report in by June 16, 2017, and suggested the court allow the probation department more time to prepare the probation report. Defense counsel requested that the court set the sentencing hearing for June 16, 2017, and have the supervisors in each office contact probation so "they can expedite the process and get [the probation report] to [the court] sooner." The court had no objection to defense counsel's suggestion, and referred the case to the probation department for "presentence investigation and report and recommendation regarding whether the case should be reduced to a misdemeanor under Penal Code Section 17[,subdivision ](b), and actual restitution and credits . . . ." The court also directed the clerk of the court to "communicate with probation that we need it done on an expedited basis due to summer vacation schedules so we can comply with the 20-day rule . . . ."
On June 12, 2017, the probation department filed a "Credit For Time Served Memorandum." In that memorandum, in relevant part, the probation officer reported the following: "Considering the circumstances of the current offense and the defendant's prior record, which dates back 15 years, it is obvious he has suffered multiple arrests ranging from controlled substances to alcohol related offenses and one arson arrest. He has a suspended driver's license and one misdemeanor conviction. In other circumstances the undersigned would not hesitate to recommend the PC17b reduction. However, Arson is a far more treacherous issue. Only the quick response of the witness, deputy and fire department prevented major damages and potential loss of property and lives. The undersigned respectfully recommends the matter remain a felony with appropriate terms and conditions to include drug testing and a review in 18 months. If the defendant has paid his fees/fines and not suffered any violations a PC17b reduction would be deemed appropriate at that time. Due to consistent drug related arrests he may be appropriate for the Drug Court." (Sic.)
On June 15, 2017, the probation department filed an addendum memorandum. In that memorandum, the probation officer listed the recommended terms and conditions of defendant's probation. The probation officer also added, "There appear[s] to be underlying drug and alcohol issues and a fascination with fires, which warrant supervision and treatment."
The sentencing hearing was held on June 16, 2017. At that time, the court stated it had received the "memos from the probation department," and asked whether any party wished to be heard. The prosecutor argued that the People were opposed to reducing the offense to a misdemeanor, noting defendant "has a serious problem with arson" and "with setting fires."
Defense counsel requested that the court reduce the offense to a misdemeanor, arguing defendant did not have a "serious track record" for arson offenses and that defendant was acquitted of the one prior arson offense. Defense counsel asserted that "Any claim that [defendant] has a long history of being involved in arson allegations just based on that one case is speculative at best." Defense counsel also stated that if the court was not going to reduce the offense to a misdemeanor, defendant objected to being placed on probation and wanted the court to sentence him instead. Defense counsel noted that defendant's request "that he reject probation is not consistent with [counsel's] legal advice to [defendant]."
The prosecutor replied that if defendant did not wish to be placed on probation, the court should impose the aggravated term of three years based on his "substantial" criminal history and criminal record. The court responded, "[t]he probation report does not have his history. I'm not aware what that is." Defense counsel noted that defendant did not have "any prior felony convictions at all." The prosecutor noted that defense counsel was correct but that defendant had "numerous felony arrests for hit and run, possession for sale, transportation, carrying a dirk or dagger." With respect to the prior felony arson charge, the prosecutor informed the court that "although the jury found [defendant] not guilty, certainly a lot of it had to do with the fact of the motions that was made [sic] by the Court, that confession was not going to come in that he burned his own apartment down, because he didn't believe that the Miranda waivers were properly taken . . . . [¶] But, nevertheless, it's his conduct that we're concerned with, is that he admitted to burning down his home, his residence. And here, again, less than a year later, we have another incident involving [defendant] and an arson charge and an arson now conviction."
Miranda v. Arizona (1966) 384 U.S. 436.
Defense counsel thereafter objected on constitutional grounds to the use of the prior arson case, noting defendant was acquitted of that charge and those facts were not before the court. The court inquired about defendant's past criminal conduct. The prosecutor then pulled up defendant's rap sheet and informed the court that defendant had all misdemeanor convictions, noting a driving under the influence conviction in October 2004, a possession of a controlled substance conviction in 2004, and no conviction from the September 2015 arson trial. The court stated that it was not going to consider the September 2015 arson case. When the court inquired about defendant's prior performance on probation, the prosecutor replied that there were no prior open files currently before the court, implying his performance was satisfactory.
The court thereafter asked defendant if he wanted the court to consider a grant of probation, or whether he was refusing probation and asking the court to sentence him to state prison. Defendant initially replied that he wanted the court to decide, but then stated that he was not going to accept probation. When the court asked defendant whether he wanted to be sentenced to prison, defendant replied "Well, no." After the court again asked defendant what he wanted, defendant stated that he wanted the court to consider probation and that he would abide by his probationary terms.
The trial court thereafter noted the criteria affecting probation and the factors in aggravation and mitigation. After an analysis of those factors, the trial court imposed and stayed an aggravated three-year sentence, and placed defendant on formal probation for a period of three years on various terms and conditions of probation. The court also imposed victim restitution in the amount of $18,960 for the cost of suppressing the fire, in addition to a restitution fine and court operations fee. The court found that defendant did not have the ability to pay attorney's fees or the cost of the presentence report. The court also ordered defendant to serve 268 days in county jail, with credit of 268 days for time served.
On June 28, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant contends that the trial court erred in sentencing him without a full presentence report from the probation department. He believes the case must be reversed and remanded for resentencing because "we cannot know 'what a current report, made by a professional probation officer, might have disclosed, nor in what light such a report would have presented [defendant] as of the time of the hearing.' " The People initially respond that the probation department submitted two memoranda containing substantially all of the information required by the statute for a presentence report, that defendant did not object to any missing information in the memoranda, and that any missing information now complained of were insubstantial. In the alternative, the People maintain that even if the submitted memoranda by the probation department were insubstantial, the failure to obtain a full presentence probation report was harmless.
Section 1203, subdivision (b)(1) provides, in pertinent part: "[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." Consistent with section 1203, subdivision (b), California Rules of Court, rule 4.411(a) states the trial court "must" obtain a probation report if the defendant is eligible for probation. Rule 4.411.5 describes the content of the probation report, as set forth in defendant's opening brief.
All further rule references are to the California Rules of Court.
Here, there is no dispute that defendant was eligible for probation. There is also no dispute that defendant did not waive the requirement of a probation report. In fact, defendant requested, and the court ordered, the probation department to prepare an expedited probation report. However, we agree with the People that defendant forfeited any claims of error regarding the format and contents of the probation reports by failing to object in the trial court. "[F]ailure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal." (People v. Welch (1993) 5 Cal. 4th 228, 234.) Moreover, " 'the right to challenge a criminal sentence on appeal is not unrestricted. In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice. [Citation.]' (People v. Scott (1994) 9 Cal.4th 331, 351 [failure to challenge statement of sentencing reasons constitutes a waiver]. . . .)" (People v. Llamas (1998) 67 Cal.App.4th 35, 38, italics omitted.) "[A] timely objection to the [preparation of an abbreviated] report would have permitted the court to consider the issue and order a [full] report or explain why none was necessary. [Citation.] Either course might have prevented this appeal . . . ." (Id. at p. 39.)
Since neither defendant nor his counsel objected to an abbreviated, expedited report at his sentencing hearing, defendant forfeited any issues relating to his probation report. (Cf. People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556 [defendant forfeited right to supplemental probation report by failure to request supplemental report and to object to proceeding without a supplemental report and stating that there was no reason judgment could not be imposed].) Omissions or errors in the abbreviated, expedited probation memoranda submitted by the probation department could have been corrected if defendant had objected in the trial court. Accordingly, we find defendant forfeited the claim that the memoranda submitted by the probation department were "woefully incomplete."
In any event, the abbreviated, expedited memoranda submitted by the probation department substantially complied with the guidelines set forth in rule 4.411.5. (See Rule 4.411.5(a)(1)-(a)(12).) The probation memoranda prepared before sentencing contained sufficient information for a fair and reasonable sentencing. Defendant did not file a separate sentencing memorandum, and asked the trial court to follow the probation department's recommendation for review and possible reduction of the offense to a misdemeanor in 18 months. Therefore, we conclude that the trial court did not violate section 1203 by its failure to have a full probation report prepared.
Further, even assuming the trial court erred by its failure to obtain a full probation report, any error was harmless. "Because the alleged error implicates only California statutory law, review is governed by the Watson harmless error standard." (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.) However, even assuming that the more rigorous Chapman standard applies to the instant case, any error in failing to get a full report was harmless beyond a reasonable doubt.
Chapman v. California (1967) 386 U.S. 18. --------
Defendant contends that "Perhaps with the benefit of a full presentence investigation and report and recommendation from the probation department, the trial court would have imposed the lower or middle term suspended, or may not have imposed a suspended prison sentence at all." He asserts that the report before the court did not contain any information regarding his past conduct. However, the circumstances of defendant's past conduct, as well as any other relevant information in aggravation and mitigation, were before the trial court before it imposed a suspended three-year sentence and placed defendant on probation. During the sentencing hearing, the prosecutor and defense counsel informed the court regarding defendant's criminal history, his past arson case, and his past performance on probation. Prior to sentencing, defense counsel also informed the court regarding defendant's children, work history, mental competence, and his ability to abide by the terms and conditions of his probation. Further, defendant had a report prepared that contained much of the same information that a full report would have included and, as discussed above, the parties provided the court with most of the information that was missing from the report. If anything, a more detailed probation report could have revealed negative information about defendant, such as if he were on probation when he committed the instant fire, or more prior convictions.
Based on the foregoing, we conclude that any error in the trial court's failure to obtain a full probation report was harmless beyond a reasonable doubt.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.