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People v. Ratnaweera

California Court of Appeals, Second District, Third Division
Feb 16, 2011
No. B216789 (Cal. Ct. App. Feb. 16, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA253956, Ronald Rose, Judge.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.


KITCHING, J.

Danasiri Ratnaweera appeals following revocation of probation previously granted upon his convictions by jury on count 1 – aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)), taking property exceeding $50,000 in value (Pen. Code, § 12022.6, subd. (a)) and four counts of perjury by false application for aid (Pen. Code, § 118; counts 3 through 6). The court sentenced appellant to prison for five years. We modify the judgment and, as modified, affirm it with directions.

This is appellant’s second appeal. His first resulted in our unpublished opinion in People v. Ratnaweera (Feb. 9, 2005, B174285) (Ratnaweera I), in which we modified the judgment by vacating a restitution order, remanded the matter for recalculation of restitution and, as modified, affirmed the judgment.

FACTUAL SUMMARY

The pertinent facts, which we distill from Ratnaweera I, are undisputed. Count 3 alleged appellant committed perjury between June 1, 1996 and May 31, 1997. The evidence, the sufficiency of which is undisputed (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), established appellant committed the perjury at issue in count 3 between October 1996 and April 1997. Count 4 alleged, and the evidence established, appellant committed perjury between August 1, 1999 and July 31, 2000. Count 5 alleged, and the evidence established, appellant committed perjury between August 1, 2000 and July 31, 2001. Count 6 alleged appellant committed perjury on January 20, 2003, and the evidence, at variance with that allegation, established appellant committed that offense between March 2003 and April 2003.

Count 3 and all other counts discussed below alleged commission of offenses “on and between” various dates. We use the term “between” for sake of convenience.

Count 1 alleged appellant committed aid by misrepresentation between May 12, 1996 and September 23, 2003, and the evidence established appellant committed that offense between those dates, specifically, during the previously mentioned four periods of October 1996 through April 1997, August 1, 1999 through July 31, 2000, August 1, 2000 through July 31, 2001, and March 2003 through April 2003. Appellant presented no defense evidence.

ISSUES

Appellant claims the trial court erred by (1) sentencing him to prison for failing to report to the probation department and (2) failing to stay sentences on counts 1, 4, 5, and 6 pursuant to Penal Code section 654. In a supplemental brief, appellant claims the trial court erroneously denied him additional precommitment credits.

DISCUSSION

1. The Court Did Not Abuse Its Discretion by Sentencing Appellant to Prison.

a. Pertinent Facts.

Following appellant’s convictions, the court, on March 25, 2004, suspended imposition of sentence and placed appellant on probation for five years on the condition, inter alia, that he report to the probation department as required by his probation officer.

A probation report filed on December 17, 2008 and pertaining to a progress report hearing scheduled for that date reflects as follows. Appellant last reported to the probation department on November 4, 2008. He had a 98 percent reporting rate, having reported 56 out of 57 occasions, had an outstanding unpaid restitution balance of $56,619.74, and was currently unemployed. The report indicated appellant was disregarding his financial obligation and needed to comply with all of his probation conditions. The report recommended the court find appellant in violation of probation, extend it so he could pay his debt, and that his probation conditions otherwise remain in effect.

On December 17, 2008, the court called the matter. At this and all subsequent proceedings, appellant represented himself. The court indicated appellant had a $10 monthly financial obligation which the court previously had found appellant was willfully refusing to pay. The court commented, “I don’t understand how anyone can steal this much money from the county and think he can roll in here every day.” The court revoked appellant’s probation and scheduled a probation violation hearing for January 16, 2009. The court later stated, “Frankly, you think this is a joke, and you’re trying to make a mockery of this system. And this court is not going to allow you to do that.”

A probation report prepared for a January 16, 2009 hearing reflects appellant had failed to report to the probation department and had failed to make any payments towards his financial obligation. The report recommended, inter alia, that the court find appellant in violation of probation and order a new grant of probation but, if the court did not order a new grant of probation, that the court order the restitution deemed a money judgment and that probation be terminated on its scheduled expiration date. On January 16, 2009, appellant failed to appear for the probation violation hearing, and the court issued a bench warrant for his arrest.

At sentencing on May 22, 2009, the court indicated appellant was arrested on the warrant on March 20, 2009.

On March 23, 2009, appellant appeared in court. He indicated he probably reported to his probation officer in January 2009, then indicated he thought he had done so, then indicated he could not remember whether he had reported to the probation officer after December 17, 2008. Appellant claimed he had not reported to the probation office because he had undergone surgeries. In response to court questioning, appellant admitted the last surgery, allegedly on March 19, 2009, involved the use of electronic devices and did not involve internal surgery. The court later scheduled a probation violation hearing for April 9, 2009.

A probation report prepared for an April 9, 2009 hearing reflects appellant had failed to report to the probation department and had failed to make any payments towards his financial obligation. The probation officer indicated he had strongly considered recommending that the court sentence appellant to prison, but appellant’s charges did not indicate he posed an immediate threat to the safety of others, he did not have an extensive criminal record, he had not suffered a new arrest, and he owed a significant amount of restitution. The report recommended the court order a new grant of probation for five years so appellant could pay the restitution.

On April 9, 2009, the court called the matter. Appellant claimed he had an understanding with the former prosecutor that appellant could seek a continuance for medical conditions, in which event an arrest warrant would be issued, a new date would be set, and the warrant would be held to that date. He also claimed he underwent surgery the day before his arrest on the warrant. According to appellant, he called the court clerk, asked about a continuance motion, she indicated it had been denied, and appellant told the clerk that appellant would come to court if possible but it was not possible.

On May 22, 2009, the court called the case for a probation violation hearing, and indicated the issue was appellant’s failure to report to his probation officer. Los Angeles County Probation Officer Andrew Chao, who reviewed appellant’s probation file, testified as follows. Appellant’s probation officer ordered appellant to report on a monthly basis to the probation office. Appellant reported to the probation office on November 4, 2008, but not thereafter.

The trial court indicated it was proceeding solely on the issue of appellant’s failure to report to the probation department, but if the appellate court reversed the trial court’s decision on that issue, the trial court would proceed to the issue of appellant’s failure to pay “one penny” towards his financial obligation.

Appellant, representing himself, asked Chao whether Chao knew that in December 2008, appellant was present in court “so that it counted as reporting compliance[.]” Chao replied no. Appellant did not ask Chao about the fact that appellant was able to appear in court on December 17, 2008, but did not report to the probation department in December 2008.

Appellant asked would he be deemed to have failed to report even if he had been physically unable to come to the probation office. In response to court questioning, Chao indicated that if a defendant was unable to report, the defendant was supposed to call the probation officer and inform the probation officer about the medical issue. There was no indication appellant had called the probation officer to report that appellant was medically unable to report to the probation office. At the conclusion of the hearing, appellant indicated he had no witnesses.

The court found appellant in violation of probation, concluding he had failed to report to the probation department since November 2008. The court stated, appellant “presents no evidence at all to suggest that he was unable to report to probation. He has had ample opportunity to do so.” The court ordered appellant’s probation revoked.

The prosecutor asked that the court sentence appellant to five years in prison. Appellant asked that the court place him on probation. The court stated that, after a thorough review of appellant’s file, it was clear appellant had no intention of complying with his probation conditions and he was unsuitable for probation. The court declined to place appellant on probation and, instead, sentenced him to prison for a total of five years. This consisted of the three-year upper term on count 3, a consecutive subordinate term of one year as to each of counts 4 and 5, a concurrent three-year term on count 6, a concurrent two-year term on count 1, and a concurrent one-year term for the Penal Code section 12022.6, subdivision (a) enhancement pertaining to count 1.

b. Analysis.

Appellant claims the trial court erroneously sentenced him to prison for failing three times to report monthly to the probation department. Appellant argues, inter alia, it was probably because he was representing himself below that he did not present evidence as to his reasons for failing to report, but the court was aware his three failures to report were due to his medical condition and the trial court abused its discretion by sentencing appellant to prison for a trivial probation violation. We reject appellant’s claim.

Penal Code section 1203.2, subdivision (a) states, in relevant part, “the court may 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.” After finding a defendant violated probation and revoking the defendant’s probation, a court may either reinstate probation on the same or modified terms, or terminate probation and order the defendant committed to prison. (People v. Harris (1990) 226 Cal.App.3d 141, 147.) There is no dispute we review a trial court’s decision to deny probation and order a defendant committed to prison under an abuse of discretion standard. (Cf. People v. Zaring (1992) 8 Cal.App.4th 362, 378.)

There is no dispute appellant violated his probation condition which required that he report to the probation department. Appellant violated that condition four times, i.e., by failing to report in December 2008, January and February 2009, and in March 2009 prior to his March 20, 2009 arrest on the bench warrant. Even if appellant had only violated his reporting condition three times, those violations would not have been trivial. At one point even appellant’s probation officer strongly considered recommending imprisonment for appellant. The court had reason to believe appellant violated a condition of his probation, and the court did not abuse its discretion by revoking and terminating probation, or by sentencing appellant to prison.

2. The Court Imposed Punishment on Count One in Violation of Penal Code Section 654.

We have recited the pertinent facts concerning the counts of which appellant was convicted (counts 1, 3, 4, 5, & 6) in our Factual Summary. We have recited in part 1 of our Discussion the components of appellant’s five-year prison sentence.

Appellant claims the trial court properly imposed sentence on count 3 but violated Penal Code section 654 by imposing sentences on counts 1, 4, 5, and 6. Respondent does not address whether the trial court, under section 654, properly imposed sentence on count 3. Respondent concedes the trial court violated section 654 by imposing sentence on count 1, but claims the trial court did not violate that section when imposing sentences on counts 4, 5, and 6.

Penal Code section 654, as interpreted by our Supreme Court, prohibits multiple punishment for offenses committed during an indivisible transaction. If all offenses are incident to one objective, the defendant may not be punished for more than one. If the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the defendant may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (Cf. People v. Bradley (2003) 111 Cal.App.4th 765, 769, fn. 3.) Finally, a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. (People v. Beamon (1973)8 Cal.3d 625, 639, fn. 11; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.)

Respondent concedes imposition of punishment on count 1 violated Penal Code section 654. Each time period within which appellant committed the offenses at issue in counts 3, 4, 5, and 6, respectively, was within the time period during which appellant committed the offense at issue in count 1, and there is no dispute appellant committed the offenses at issue in counts 3, 4, 5, and 6 to commit the offense at issue in count 1. Therefore, as between, on the one hand, counts 3, 4, 5, and 6, and, on the other, count 1, we accept respondent’s concession that imposition of sentence on count 1 violated section 654. However, as between counts 3, 4, 5, and 6 themselves, imposition of sentence on those counts did not violate section 654, because those four offenses were committed during four different periods, and thus were divisible in time. Appellant concedes section 654 does not bar multiple punishment of offenses divisible in time. We will modify the judgment as to count 1 accordingly.

3. Appellant Is Not Entitled to Additional Precommitment Credit.

During the May 22, 2009 sentencing hearing, the court awarded appellant 461 days of precommitment credit, consisting of 308 days of Penal Code section 2900.5, subdivision (a) custody credit and 153 days of Penal Code section 4019 conduct credit.

In a supplemental brief, appellant claims that, effective January 25, 2010, Penal Code section 4019 was amended (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28X, § 50) to increase conduct credits for defendants who (1) have not been required to register as a sex offender, (2) have not been committed for a serious felony, and (3) have not suffered a prior serious or violent felony conviction, with the result that, according to appellant, he is entitled to 308 days of custody credit and 308 days of conduct credit because the amendment applies retroactively to his offenses.

Our appellate courts have divided on the issue of whether the amended version of Penal Code section 4019 applies retroactively. The issue is pending before our Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

We note that (1) the statute at issue amending Penal Code section 4019, pertaining to county jail inmates, also amended the law pertaining to prison credits with the result that county jail inmates, and state prison inmates, would receive enhanced conduct credit (on a one-to-one ratio), and (2) nothing in those provisions indicated the enhanced prison conduct credit applied retroactively, except for a single provision (Pen. Code, § 2933.3, subd. (d)) which expressly provided for limited retroactive application for a certain class of prisoners. We conclude the Legislature thus knew how to signal an intent that enhanced conduct credit apply retroactively, and the Legislature’s failure to include retroactive language regarding the enhanced conduct credit applicable to county jail inmates permits the inference the Legislature did not intend the amendment to Penal Code section 4019 to have retroactive effect as to those inmates. Accordingly, we hold Penal Code section 4019 as amended effective in January 2010 does not apply retroactively to appellant’s offenses; therefore, he is not entitled to additional conduct credit.

Nor did a solely prospective application of the amendment violate equal protection principles. (Cf. In re Stinnette (1979) 94 Cal.App.3d 800, 804-806; In re Strick (1983) 148 Cal.App.3d 906, 909, 912-914.)

DISPOSITION

The judgment is modified by staying execution of sentence on appellant’s conviction for aid by misrepresentation (count 1) pending completion of his sentence on his four convictions for perjury (counts 3 through 6), such stay then to become permanent, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

We concur: CROSKEY, Acting, P. J., ALDRICH, J.


Summaries of

People v. Ratnaweera

California Court of Appeals, Second District, Third Division
Feb 16, 2011
No. B216789 (Cal. Ct. App. Feb. 16, 2011)
Case details for

People v. Ratnaweera

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANASIRI RATNAWEERA, Defendant…

Court:California Court of Appeals, Second District, Third Division

Date published: Feb 16, 2011

Citations

No. B216789 (Cal. Ct. App. Feb. 16, 2011)