Opinion
A131167
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JOAO PIERINI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC062956A)
Joao Pierini appeals from orders finding him in violation of his probation, revoking his probation, and imposing a state prison term following a contested probation violation hearing. Pierini contends: (1) the trial court lacked jurisdiction to adjudicate his probation violation, because the summary revocation of his probation was based on untrue factual allegations and did not toll the running of the probationary period; and (2) the court improperly imposed the upper term of sentence based on his conduct while on probation rather than the circumstances at the time probation was granted. We will affirm the order finding Pierini in violation of his probation, remand the matter for the trial court to determine the proper term of imprisonment, and affirm the sentencing order in all other respects.
I. FACTS AND PROCEDURAL HISTORY
An amended complaint alleged that appellant Pierini perpetrated numerous sexual offenses upon four underage victims. Count 1 charged Pierini with committing lewd or lascivious acts on a child 14 or 15 years old and 10 years younger than Pierini. (Pen. Code, § 288, subds. (a) & (c).) Counts 2, 4, 6 and 8 charged him with annoying or molesting a child under 18. (§ 647.6, subd. (a).) Counts 3, 5 and 7 alleged that he committed sexual battery. (§ 243.4, subd. (e)(1).) Count 9 asserted that he contributed to the delinquency of persons under the age of 18. (§ 272, subd. (a)(1).)
All statutory references are to the Penal Code.
According to a report of the probation department, the facts underlying these offenses were as follows. Pierini ran a Brazilian Jiu Jitsu studio. Four of his underage male students accepted his invitation to go to his studio after hours to drink beer. After the victims consumed a few cans of beer, Pierini offered to massage them. While massaging the first victim, Pierini repeatedly touched the victim's testicles. He massaged the second victim near the buttocks area before the second victim stood up and walked away. While massaging the third victim, he grasped the victim's testicles. The third victim slapped Pierini's hand away, but Pierini continued, grasping the victim's penis under his shorts and asking him, "Do you like?" Pierini molested the fourth victim in a similar manner and attempted to masturbate him before the victim turned over and told Pierini to stop.
Pierini entered pleas of nolo contendere to the felony charge of lewd or lascivious acts upon a child (§ 288, subd. (c)(1)) and to misdemeanor offenses of annoying or molesting a child (§ 647.6, subd. (a)) as to each of his other three victims. The court dismissed the remaining counts.
On April 4, 2007, the court suspended imposition of sentence and placed Pierini on probation for three years. As conditions of his probation, Pierini was required to serve a year in jail and to: keep his probation officer advised of his whereabouts; seek and maintain treatment, counseling or therapy, as directed by the probation officer; not associate with minors or frequent places where minors congregate unless in the presence of a responsible adult approved by the probation department; and not reenter the United States illegally if deported. Pierini was also required to register as a sex offender pursuant to section 290.
While Pierini was serving his jail term in August 2007, Pierini's probation officer visited him in custody and reminded him of the conditions of his probation. In particular, Pierini was directed to contact the probation officer immediately upon release from federal custody and reentry into the United States, and to register as a sex offender pursuant to section 290. Pierini was advised that he was required to contact the probation officer after his release even if he was deported. He was further advised of his obligation to undergo sexual offender counseling, wherever he ended up living.
On September 4, 2007, Pierini completed his jail sentence and was sent to Immigration and Customs Enforcement (ICE) to begin deportation proceedings. Pierini was in federal custody for approximately a year before his deportation. He contacted his probation officer only once, by mail in May 2008, to request that his probation orders be forwarded to him.
On July 15, 2008, an ICE agent notified Pierini's probation officer that Pierini had been deported back to Brazil.
On August 8, 2008, the probation officer filed an affidavit of probation violation and requested a warrant be issued for Pierini's arrest. The affidavit alleged that Pierini had violated his probation in that he "failed to keep his probation officer advised of his whereabouts" and his "[c]urrent whereabouts [were] unknown." The court summarily revoked Pierini's probation and issued the arrest warrant.
However, unbeknownst to his probation officer, due to transportation issues Pierini was not actually deported until September 29, 2008. Pierini did not contact the probation officer after his deportation.
Some time between October 2008 and July 2010, Pierini reentered the United States. Pierini did not notify his probation officer of his return.
The original term of Pierini's three-year probationary period, if not tolled, expired on April 4, 2010. On July 26, 2010, Pierini's probation officer was notified that Pierini had been arrested, apparently on the probation violation warrant that had been issued in August 2008. Upon inquiry of ICE, the probation officer received documentation that there was no record of Pierini reentering the United States legally; the probation officer also learned, for the first time, that Pierini had not been deported until September 2008.
On August 25, 2010, the probation officer filed an affidavit of probation violation "addendum." The addendum alleged that Pierini violated the terms of his probation by: failing to keep his probation officer advised of his whereabouts; illegally reentering the United States; failing to advise his probation officer of his status and failing to contact the probation department as directed; and failing to participate in and complete sex offender counseling as ordered.
Pierini filed a motion to "dismiss [the] probation violation," contending: his probation was revoked during the probationary period in August 2008 without cause, because by August 2008 he had already been deported; the probationary period had expired in April 2010; and no amendment to the original petition could be valid.
Oddly, Pierini's motion to dismiss represented that he was, in fact, deported in July 2008. This was apparently untrue, according to ICE and Pierini's representations at the hearing on the motion to dismiss.
At the contested probation violation hearing on December 29, 2010, the court received evidence and argument from counsel and decided both Pierini's motion to dismiss and whether Pierini had violated the terms of his probation.
The court denied Pierini's motion to dismiss. It ruled that the probation officer's August 2008 affidavit was based on probable cause and was sufficient for the summary revocation of Pierini's probation, thus tolling the probationary period. Further, the court ruled, under the facts of the case it did not matter that the augmented affidavit was filed after the term of the original probationary period. The court explained: "Had the probation officer learned correctly of the defendant's deportation date, she would certainly have filed the correct petition during the probation period. And ultimately the evidence did show the defendant did violate his probation during the probationary term, which I will talk about in just a moment."
The court then determined that Pierini violated the terms of his probation by the conduct alleged in the augmented affidavit: failing to keep his probation officer advised of his whereabouts; illegally re-entering the United States; failing to advise his probation officer of this status and contact the probation department as directed; and failing to participate in and complete sex offender counseling as ordered. In addition, the court amended the augmented affidavit according to proof and found that Pierini violated the terms of his probation by: failing to register as sex offender and associating with minors under the age of 18; and frequenting a place where minors congregate, without being in the presence of a responsible adult approved by the probation department.
Testimony at the hearing indicated that by February 2010, before the expiration of his three-year probation period, Pierini had re-entered the United States and associated with minors by providing "physical training" at a gym in East Palo Alto.
At the sentencing hearing on January 28, 2011, the court revoked and terminated Pierini's probation. Pierini was sentenced to the upper term of three years in state prison on his felony offense.
This appeal followed.
II. DISCUSSION
Pierini contends: (1) the trial court lacked jurisdiction to adjudicate his probation violation in 2010, because the summary revocation of his probation in August 2008 did not operate to toll the probationary period; and (2) the court improperly imposed the upper term of sentence based on his conduct while on probation, rather than on the circumstances as of the time of the grant of probation.
A. Jurisdiction to Revoke Probation
As mentioned, the trial court found that the summary revocation of probation in August 2008 tolled the running of the probationary period, such that the court had jurisdiction at the ensuing probation violation hearing to adjudicate any violation of probation that occurred during the probationary period, even if the violation was alleged in the augmented affidavit of August 2010 rather than the original affidavit of August 2008. Pierini claims this was error, urging that the August 2008 summary revocation could not toll the probationary period because it was based on allegations that were untrue. Because his original probationary period expired in April 2010, and assuming the probationary period was not tolled, Pierini argues that the court lacked jurisdiction to adjudicate the violations alleged in the augmented August 2010 affidavit. (See People v. White (1982) 133 Cal.App.3d 677, 683.)
A court ordinarily loses jurisdiction to revoke probation after the expiration of the probationary period. (In re Griffin (1967) 67 Cal.2d 343, 346.) However, under section 1203.2, subdivision (a), if the court summarily revokes probation during the probationary period, the probationary period is tolled so that the court may, after the date the probationary period would otherwise expire, adjudicate at a formal hearing whether the probationer violated the terms of his probation and, if so, either reinstate, modify or revoke the probation and impose sentence. (People v. DePaul (1982) 137 Cal.App.3d 409, 413-414.)
Summary revocation is the procedure by which the probationer is brought to court; actual revocation occurs after a hearing at which the probationer is afforded due process rights. (People v. Barkins (1978) 81 Cal.App.3d 30, 32-33.) Before enactment of section 1203.2, subdivision (a), if probation was revoked during the probationary period, the probationary period continued to run, and once the period expired the court had jurisdiction only to sentence the probationer to prison; the tolling provided by section 1203.2, subdivision (a) gives the court jurisdiction to reinstate probation or impose an extended probationary term as an alternative to imposing a prison sentence. (DePaul, supra, 137 Cal.App.3d at pp. 413-414.) This tolling has a variety of consequences besides the jurisdictional issue we discuss here. (See, e.g., People v. Wagner (2009) 45 Cal.4th 1039, 1060-1061; People v. Lewis (1992) 7 Cal.App.4th 1949, 1951-1956 (Lewis); DePaul, supra, 137 Cal.App.3d at pp. 412-414.)
More specifically, the court, upon reason to believe the probationer has violated a condition of his probation, may issue a warrant for a probationer's arrest and summarily revoke his probation: "At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, . . . if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation . . ., the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such 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, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses." (§ 1203.2, subd. (a).)
"The revocation, summary or otherwise, shall serve to toll the running of the probationary period." (§ 1203.2, subd. (a), italics added.) Thus, the summary revocation continues the time within which the court has jurisdiction to adjudicate whether the probationer has violated his probation. Once the period is tolled, "the hearing on the violation, the court's ruling, and the imposition of sentence may all occur even after the probationary period would otherwise have expired." (People v. Burton (2009) 177 Cal.App.4th 194, 199 (Burton).)
Section 1203.2, subdivision (a) states that summary revocation tolls the running of the probationary period, terminology which suggests an extension of the time in which the court may act. The statute does not specify that summary revocation extends the probationary period itself, so as to prolong the time in which the probationer must abide by the conditions of his original probation. At least one court indicates that the probationary period is not extended in this manner, and an act occurring after the original probationary period cannot be used to prove a probation violation. (People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), disapproved on other grounds in People v. Wagner (2009) 45 Cal.4th 1039, 1061, fn. 10; cf. DePaul, supra, 137 Cal.App.3d 409, 413-414 [time between order revoking probation and order reinstating probation does not count in calculating expiration date of probationary period]; Lewis, supra, 7 Cal.App.4th at pp. 1951-1956 [appellant continued to be subject to the conditions of probation between the time probation was summarily revoked and he admitted a probation violation, and the time probation was reinstated; that interim period was within the original probationary term, and the probationary term was not terminated by the summary revocation].) However, the issue appears to be the subject of People v. Leiva (S192176; Jun. 15, 2011; 2011 Cal.LEXIS 6511), now pending before our Supreme Court. Although Pierini refers us to Leiva, we need not and do not address this issue.
As applied here, the probation officer's August 2008 affidavit resulted in the summary revocation of Pierini's probation, which in turn tolled the running of the probationary period. While the running of the probationary period was tolled, the petition was augmented to allege other violations of probation occurring during the original term of his probation. When the court adjudicated whether Pierini violated his probation, the running of the probationary period was still tolled; therefore, the court had jurisdiction to find that Pierini had failed to comply with the conditions of his probation during the original probationary period, based on the probation officer's original and augmented affidavits.
Pierini disagrees with this conclusion, arguing that the August 2008 summary revocation did not toll the running of the probationary period because it was based on a purported violation that was untrue and never proved. The affidavit underlying the August 2008 summary revocation asserted that, as of August 2008, Pierini had "failed to keep his probation officer advised of his whereabouts" and his "whereabouts [were] unknown." Pierini urges this was untrue, because as of August 2008 he had not been deported and was still in federal custody, and in any event the prosecutor did not prove the allegation at the probation violation hearing.
Pierini's argument - that summary revocation tolls the probationary period only if the underlying violation is proved - finds no support in the language of the governing statute. Section 1203.2, subdivision (a) simply states unequivocally that summary revocation itself serves to "toll the running of the probationary period." The statute does not condition tolling on whether the allegations of the affidavit or petition underlying the summary revocation are ultimately found to be true or the probationer is eventually found to have violated the terms of his probation.
Nor does Pierini's argument find support in the case on which he relies. In Tapia, supra, 91 Cal.App.4th 738, the defendant was placed on probation for three years and ordered to serve a year in jail, report to probation upon his release from jail, and if he left the country not to reenter illegally. (Tapia, at p. 739-740.) The defendant completed his jail term and was deported; during the probationary period his probation was summarily revoked for failure to report to the probation department. (Ibid.) After the probationary term ended, the defendant returned to the United States and was arrested. At the formal probation revocation hearing, the defendant admitted that he did not report to the probation officer when he returned to the United States after his original probationary term expired, but he did not admit the allegation that was the basis of the summary revocation, namely, a failure to report to probation during the probationary period. (Id. at pp. 740-742.) The trial court found a probation violation, revoked probation, reinstated it and extended the term of probation. (Id. at p. 740; see § 1203.3.)
The appellate court in Tapia recognized that a summary revocation of probation tolls the probation period so that the court retains jurisdiction to adjudicate whether there has been a violation. (Tapia, supra, 91 Cal.App.4th at p. 741.) The rule does not apply, however, where "the People have failed to prove that a violation occurred during the term of probation." (Ibid., italics in original.) The trial court in Tapia therefore had no jurisdiction to revoke, reinstate, and extend the defendant's term of probation - not specifically because the prosecution had failed to prove the violation alleged in the petition underlying the summary revocation, but because the prosecution had not proved any violation occurring within the original probationary period. In other words, despite the tolling provision of section 1203.2, subdivision (a), a probationer can violate his or her probation only by acts perpetrated during the original probationary period.
Pierini's reliance on Tapia is misplaced. First of all, it does not stand for the proposition Pierini asserts: Tapia says nothing about the probationary period not being tolled if the prosecution fails to prove the allegations underlying the summary revocation, but only that a court has no jurisdiction to hold a probationer in violation of his probation, and thereupon order that probation be extended, based on acts occurring after the original probation period. Furthermore, Tapia is distinguishable on this critical fact: in Tapia, the only acts proven as probation violations were committed after the original probationary period had expired; here, the acts proven as probation violations occurred during the original probationary period.
Respondent contends that Pierini's argument is ultimately laid to rest by Burton, supra, 177 Cal.App.4th 194. There, the defendant's probation was summarily revoked on the basis of a petition charging a violation that the prosecution later failed to prove. While the first petition was pending, but before expiration of the probationary period, a second petition was filed charging the defendant with a different violation that the prosecution proved. (Id. at pp. 195-196.) Akin to Pierini's argument here, the defendant contended that the trial court lacked jurisdiction to revoke his probation, because the charge in the first petition, which triggered the tolling of the probation period, was not proved. (Id. at p. 200.)
Our colleagues in Division Four of this appellate district rejected the defendant's argument. The appellate court concluded that "the trial court's summary revocation of [defendant's] probation in response to the [first] petition preserved the court's jurisdiction to revoke [the defendant's] probation based on any violation that was committed and charged during the probationary period, including violations not charged in the [first] petition." (Burton, supra, 177 Cal.App.4th at p. 200, italics added.) The court stated: "[O]nce the expiration of a probation period is tolled, then as long as a probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after the expiration of the probation term, even if the tolling was based on a violation the prosecution did not ultimately prove." (Id. at p. 196, italics added.)
Burton is authority for the proposition that summary revocation of probation tolls the running of the probationary period, even if the allegations underlying the summary revocation are not proven. It is, therefore, contrary to the position Pierini asserts.
Burton, however, is not entirely on point, and raises a question of its own. In Burton, the second petition containing the allegations that were found to constitute probation violations was filed during the original probationary period; here, the augmented affidavit containing the relevant allegations was filed after the original probationary period. Indeed, the court in Burton expressly noted in its holding that the later petition was filed within the probationary period: the trial court had jurisdiction to revoke probation based on a violation that was "committed and charged during the probationary period;" the trial court retains jurisdiction to revoke probation after the expiration of the probation term if the probationer "is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period." (Burton, supra, 177 Cal.App.4th at pp. 200, 196, italics added.)
The question not addressed by Burton, but ostensibly at play here, is this: does summary revocation of probation, based on allegations that the prosecution later fails to prove, toll the running of the probationary period so as to continue the court's jurisdiction to revoke probation based on other acts committed during the original period of probation, only if those acts are also charged during the original probationary period? The answer is no, at least under the facts of this case.
The language of section 1203.2, subdivision (a) does not suggest any distinction between allegations filed before the original probationary period and allegations filed after its expiration. The statute provides that summary revocation of probation serves to "toll the running of the probationary period," not that it tolls the running of the probationary period "only as to the alleged violations on which the summary revocation was based" or "only as to violations alleged in a document that is filed before the probationary period otherwise would have expired." If the Legislature had intended to draw a distinction on this basis, it certainly knew how to use language clearly expressing such an intent.
Furthermore, once probation is summarily revoked, justice favors the adjudication of all of the purported violations perpetrated within the original term of probation, whether they happen to be charged before or after the original term expired. When information arises to give a probation officer or peace officer probable cause to believe the probationer is in violation of his probation, and even instills in the court a reasonable belief that the terms of probation have been violated to the point that justice calls for summary revocation, the probationer is on a different footing than persons whose probation has not been summarily revoked. In this circumstance, where the court's jurisdiction has already been extended to adjudicate formally at least one alleged violation of probation, it is just and efficient to permit the court to adjudicate formally all other alleged violations of probation occurring during the original probationary period, so that the probationer can be held accountable for what he or she agreed to do in exchange for avoiding prison in the first instance. Pierini offers us no reason why a probationer, whose probation has already been summarily revoked, should escape the consequences of proceeding to violate the terms of his or her probation merely because the allegations of these later violations were filed after the original probation term, but while the probationary period has been tolled pursuant to statute.
There is, of course, a distinction between a later petition filed within the original probationary period and one that is filed after the original probationary period. If the later petition is filed within the probationary period, it could independently justify summary revocation of probation, tolling the period to adjudicate the violations alleged in the later petition. In that instance, the merit of the first petition, and the effect of the summary revocation and tolling based thereon, would make no difference. If the later petition is filed after the probationary period, however, its sole jurisdictional premise rests on the effect of the original petition and summary revocation: that is, whether the summary revocation tolled the period only as to a probation violation alleged in the original petition, or as to all probation violations including those later alleged.
A complete resolution of this issue would require a closer look at the purposes of section 1203.2 and the overall statutory scheme. For example, if section 1203.2, subdivision (a) was enacted merely to give the court jurisdiction to reinstate or extend probation (as an alternative to imposing a state prison sentence) even after the original duration of the probationary period had elapsed, the argument could be made that the tolling specified in section 1203.2, subdivision (a) is linked specifically to the violation for which probation was initially revoked. (See DePaul, supra, 137 Cal.App.3d at pp. 412414.) Alternative interpretations are possible as well, including that the probationary period is tolled for all purposes. We need not consider the matter further, however, because this appeal may be resolved on the ground that one of the violations alleged in the later affidavit was alleged in the original affidavit, thus rendering the distinction between the two immaterial. (See text, post.)
At any rate, under the facts of this particular case, the filing of the augmented affidavit after the original probationary period is of no consequence for a more limited reason: one of the probation violations found by the court was alleged not only in the augmented affidavit of August 2010, but also in the original affidavit of August 2008.
Both affidavits allege Pierini violated the terms of his probation in that he "failed to keep his probation officer advised of his whereabouts." In both affidavits, the allegation relates to Pierini's failure to advise his probation officer of his release from federal custody and his failure to disclose where he was living thereafter. Although the charge in the August 2008 affidavit was premised on the probation officer's belief that Pierini was deported in July 2008, and the evidence supporting the charge in the August 2010 affidavit was that Pierini was deported in September 2008, the difference is nothing more than a date fully within Pierini's knowledge and not a matter of dispute between the parties.
Thus, when the court found true the allegation in the augmented affidavit, it was really finding true the allegation in the original affidavit, as amended in accord with the evidence at the hearing. Pierini does not and cannot dispute that the court had jurisdiction to adjudicate the violation alleged in the original affidavit; nor can he dispute that the court may amend the original affidavit according to the proof presented at the hearing. The court had jurisdiction to find that Pierini violated his probation on this basis.
Indeed, the trial court alluded to this concept: "[T]he fact that the probation officer in good faith relied on ICE's representation of the defendant's deportation date and subsequently filed a petition a month and a half early should not preclude the People from amending the petition to allege the correct date of the defendant's probation violation when it occurred during a probationary period even though it was amended after the probationary period."
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The probation violation alleged in the August 2008 affidavit, as amended, was sufficient to warrant summary revocation of probation. Whether or not the court had jurisdiction to revoke probation based on the other allegations of the August 2010 affidavit, it could still consider the proof of those allegations for other purposes, such as deciding whether, as a result of Pierini's probation violation in failing to report to his probation officer, his probation should be reinstated, extended, or revoked with imposition of sentence.
Pierini fails to establish error on this ground.
B. Upper Term of Sentence
Rule 4.435(b)(1) of the California Rules of Court provides: "The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term. . . . " This rule was "intended to preclude the possibility that a defendant's bad acts while on probation would influence his sentence upon revocation of probation." (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) Pierini argues that the court imposed the upper term of sentence based on the seriousness of his conduct while on probation, rather than on the circumstances existing at the time probation was granted. He contends the case must therefore be remanded for resentencing.
1. Background
At the sentencing hearing, the court heard from the parents of one of Pierini's child victims. The victim's mother stated: "Mr. Pierini, you took . . . someone I nurtured and you lied to him, molested him and damaged his trust, his trust of all people and authority, including mine and his father's. You did this at a time in my son's life when he needed to look up to and trust adults. And he did look up to you. You told him he was like a son to you. You said you would make him the next champion. But you didn't mean it. He loved the class, everything about it and admired you. You were his mentor. His teacher. You were strong with a skill he wanted to learn. He would come home after class excited about it and demonstrate the jiu jitsu moves you taught him. He sought your approval and your words of encouragement. We got him the jiu jitsu robe. He had to have it. And he signed up for months of classes. [¶] One night you got him and his friends drunk and told them you would give them massages. You gave these teenagers beer, sleeping bags and molested them. [¶] I never saw that jiu jitsu robe again. My son never stepped foot in that school after that night. You were arrested and convicted for that behavior. [¶] But more importantly my son changed. Sure, most teenage boys have a defiant streak in them, but I can tell you that after that night my son stopped caring. His grades plummeted. His attendance was sketchy at school. And senior year in high school was a cruise down party lane. My son wanted to go to college and my husband offered it to him. He flunked out of junior college after two years of us pleading for a change. And he now finds his life at the bottom of bottles of beer every night. [¶] What part of this behavior is from that one night? No one knows. But I know my son changed. I knew him before. I don't know him any more. He has an angry edge to him. You intruded on us as a family and you hurt something in my son forever." (Italics added.)
The prosecutor thereafter argued: "Mr. Pierini received an unbelievably lenient sentence when this case was first before the Court. The People had asked for prison top. We argued for prison. Probation recommended prison. And the defendant was able to make a persuasive argument through his attorney and received his year in county jail. [¶] He was then immediately deported. And from the day he set foot in Brazil, he began a series of activities that violated the law every single day from that day forward by not contacting his probation officer, by coming back to the United States, and most importantly and most egregiously, in my opinion, by coming back and engaging in teaching of children in direct opposition to the Court's orders. [¶] I would suggest that Mr. Pierini has far and away by the number of violations, as well as the egregiousness of the original crime, he has earned an aggravated term. . .. "
Defense counsel argued in turn that counsel could not "relitigate the past" or the case, and he did not believe there were grounds for Pierini to withdraw his plea. Counsel asked the court to impose the midterm, and then Pierini would be deported.
The prosecutor rejoined that she was "not going to litigate" the underlying matter either, and added: "But the point is what he is here to be punished for today is his reentry into the United States and other violations of probation." (Italics added.)
In revoking probation and imposing the upper term of sentence, the court stated: "I don't want to relitigate the underlying case because I don't think that's necessary, but I think it is telling the effect you have had on one of the victim's parents. But what you did was not registering, illegally coming back, not getting counseling, and what I think is the most really appalling thing is teaching boys of the age that your victims were. It really justifies the aggravated term. To be honest, I just don't think it's a close case."
2. Analysis
Pierini argues that the court imposed the upper term because of the seriousness of the probation violations. Imposition of the upper term on the basis of appellant's conduct while on probation, rather than the circumstances existing at the time probation was granted, is error. (Cal. Rules of Court, rule 4.435, subd. (b)(1); People v. Colley (1980) 113 Cal.App.3d 870, 872-873.)
To be sure, there was ample evidence in the record to support the imposition of the upper term, based solely on the circumstances at the time of the grant of probation, including the facts of the offense. Rules 4.421(a)(3) and (11) permit the court to impose the aggravated sentence if the victim was particularly vulnerable and if the defendant took advantage of a position of trust or confidence to commit the offense. In this matter, the young victims were particularly vulnerable because Pierini was their instructor and held a position of trust, and he sexually molested them after inviting them over and plying them with alcohol. In addition, as the trial court noted at sentencing, Pierini's offense had damaging effects on the victim and his family. These considerations were not related to appellant's conduct while on probation.
The record indicates that the trial court imposed sentence at least in part on these matters existing at the time of the grant of probation. As part of its reason for imposing the upper term of sentence, the court asserted: "I think it is telling the effect you had on one of the victim's parents." Clearly, this related to Pierini's underlying offense, not his conduct during probation. Furthermore, while the court stated that it was not going to "relitigate the underlying case" because it was unnecessary to do so, in context the court plainly meant there was no reason to determine the merits of the underlying allegations, not that it was intending to ignore the nature of Pierini's offenses in determining the appropriate sentence. And in stating, "It really justifies the aggravated term[,] I just don't think it's a close case," the "[i]t" may well have been the totality of Pierini's underlying offenses as well as his probation violations.
On the other hand, the court certainly also mentioned Pierini's conduct on probation in explaining the reasons to revoke probation and impose the upper term of sentence. While conduct on probation may be used in considering whether to revoke probation, it is not to be considered in determining whether to impose an aggravated sentence. Based on the record before us, it is not clear whether the court would have imposed the upper term of sentence if it had not considered Pierini's acts while on probation.
Respondent urges that any error in the court's reliance on the acts occurring during probation was harmless, because it is not reasonably probable that a more favorable result would occur absent consideration of those acts. (See People v. Downey (2000) 82 Cal.App.4th 899, 917.) The record supports this argument to some extent, in that the trial court determined that the matter did not present a "close case." Pierini counters, however, that the court that accepted his no contest plea indicated the maximum sentence would be the mid-term of two years if he were denied probation and sentenced to the Department of Corrections. In Pierini's view, this suggests it is reasonably probable a court viewing the circumstances at the time of the original grant of probation would have imposed a sentence of less than the upper term. Furthermore, Pierini urges, at least two circumstances enumerated in the rules of court point toward a mitigated sentence: there is no evidence in the record that Pierini had any previous criminal history (Cal. Rules of Court, rule 4.423(b)(1)), and Pierini pled no contest at an early stage of the proceedings (Cal. Rules of Court, rule 4.423(b)(3)). While the question is what the sentencing judge would have done, and not what a prior judge would have done, the record does not provide sufficient support for respondent's harmless error analysis.
We conclude that, although there was an overwhelming basis to impose the upper term of sentence based on the circumstances existing at the time of the grant of probation, it is not sufficiently clear from the record that the sentencing judge would have imposed the upper term of sentence if he had not also considered Pierini's conduct in violating the terms of his probation. Accordingly, the matter must be remanded for resentencing, for the limited purpose of the court deciding the term of sentence to be imposed based solely on the circumstances existing at the time probation was originally granted.
III. DISPOSITION
The order finding appellant in violation of probation is affirmed. The matter is remanded to determine the term of sentence to be imposed. The order imposing sentence is affirmed in all other respects.
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NEEDHAM, J.
We concur.
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SIMONS, Acting P. J.
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BRUINIERS, J.