Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS051924
Mihara, J.
On March 23, 2006, defendant Felix Reyes pleaded no contest to a single count of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5) and admitted a prior prison term (Pen. Code, § 667.5, subd. (b)). Additional counts were dismissed pursuant to a plea agreement. On May 18, 2006, the trial court sentenced defendant to five years in prison, but suspended execution of sentence and placed defendant on formal probation for three years. On December 28, 2006, defendant admitted to two violations of probation, and, on February 2, 2007, the trial court imposed the previously suspended sentence. Defendant appeals and contends that the trial court abused its discretion in imposing the prison term. We agree and reverse the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
On June 13, 2005, defendant assaulted his 18-year-old girlfriend. Defendant pleaded no contest in exchange for a promised maximum sentence of four years if sentence was imposed immediately, or five years if granted probation.
During the sentencing proceedings, the trial court noted defendant’s history of noncompliance on parole and of substance abuse, but ultimately granted probation. The court stated: “And I’m going to give you a shot at [probation] because I’ve never seen anybody so adamant about not going to -- wanting to go to prison that I’m thinking that maybe you got the message this time. And you’re looking -- and you would be looking at five years automatic if you -- any violations of probation. Do you understand that?”
The trial court imposed a number of probation terms and conditions, including that defendant abstain from drug and alcohol use. Defendant was ordered to not wear or display any article of clothing associated with membership or affiliation in a gang. Defendant also was ordered to serve 365 days in county jail, with a 192-day credit for time served. Defendant was permitted to serve the time during four-day weekends, at the sheriff’s discretion, so that he could continue to work and to pay child support.
On December 8, 2006, the probation office filed a section 1203.2 petition to revoke or modify defendant’s probation. The petition alleged that defendant was observed at the county jail wearing gang colors, and that defendant tested positive for methamphetamine and cocaine on December 7, 2006. Defendant admitted the two alleged probation violations, and the court revoked probation and referred the matter to the probation department for a supplemental report.
According to the supplemental probation report, defendant attributed his drug relapse to consternation over his inability to be with his daughter on her birthday. Defendant told the probation officer that he had not received effective substance abuse treatment in the past, and that he wanted to discontinue his drug use and participate in a treatment program. He also stated that he had dropped out of gangs in 2001 and was prepared to throw out all gang-related possessions. The probation officer expressed doubt regarding defendant’s sincerity, and recommended imposition of the suspended sentence.
A chart attached to the probation officer’s report documented defendant’s time served at Monterey County Jail during his weekend custody. The dates showed a gap between October 15, 2006 and December 7, 2006, suggesting that defendant did not report to jail for seven consecutive weekends. However, the probation officer’s report did not mention any failure to report and noted that the gang violation arose when a deputy observed defendant wearing gang colors in jail on November 23, 2006.
At the hearing on February 2, 2007, the trial court noted the gap in the jail records and concluded as follows: “Well, originally, when I sentenced [defendant], the Probation Department had recommended state prison, and I went out on a limb and gave him an execution of sentence suspended. And actually, what we’ve got here is three violations of probation. The way I look at it, in looking at the weekends that he was doing, he blew off the weekends, starting the 19th of October of the year 2006. And then, he shows up at the jail on the 7th of December, and that’s when he -- I mean, you’ve got to go out of your way to show your colors. If you’ve got a red jersey, red shorts, and shoes with red trim, like putting a ‘kick me’ sign on your own back. And then, there’s the dirty test, as well. And I’m going to have to agree with the District Attorney, that it does not appear to be amenable for probation with all these violations, at once, here. So further probation is denied.” The court then imposed the previously suspended sentence of five years in prison.
Defense counsel did not object to the finding of a third, uncharged probation violation. Although counsel mentioned, prior to the court’s ruling, that there had been an error in the custody record, he stated that the mistake had been corrected and now showed “all the weekends that [defendant] did serve.”
II. Discussion
Penal Code section 1203.2, subdivision (a) allows for revocation of 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, . . .” “[A] grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) The factual findings underlying the court’s decision must be shown by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 447) and will not be disturbed absent abuse of discretion (People v. Kelly (2007) 154 Cal.App.4th 961, 965).
Defendant contends that because the finding regarding a third probation violation was based on erroneous information, the trial court abused its discretion in imposing the prison term. Due to the importance the court placed on defendant’s purported failure to report to weekend custody, defendant argues, the case must be remanded for resentencing. We agree.
A week after defendant’s sentencing, on February 9, 2007, defense counsel asked the court to award 28 days of additional credit for time served. These 28 days correspond to the seven four-day weekends missing from the probation report’s summary of time served in county jail (between October 15, 2006 and December 7, 2006). The trial court accepted the representations regarding defendant’s custody during the seven missing weekends and awarded 28 additional days of credit. No additional action was taken.
As the People concede, the record supports defendant’s assertion that he did not “blow off” his weekend custody as stated by the trial court on February 2, 2007. Thus, the court’s decision to impose the suspended sentence was based, at least in part, on erroneous information. Relying on principles set forth by the United States Supreme Court, our high court has explained that in the probation revocation context, “‘[b]oth the probationer . . . and the State have interests in the accurate finding of fact and the informed use of discretion—the probationer . . . to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.’ [Citation.] It is thus detrimental to the state and the probationer alike if probation is revoked ‘because of erroneous information or because of an erroneous evaluation of the need to revoke[.]’” (People v. Coleman (1975) 13 Cal.3d 867, 873-874.) We therefore find that the court’s reliance on erroneous information in imposing the prison sentence constitutes an abuse of discretion.
Additionally, we note that a “probationer is entitled to written notice of the alleged violations of probation, disclosure of the evidence against the probationer and an opportunity to respond to the charges.” (People v. Self (1991) 233 Cal.App.3d 414, 419 (Self).) Here, the People did not allege nor argue that defendant failed to report for his weekend custody, the probation report referred to no such failure, and defendant was not given an opportunity to respond to an allegation of an additional probation violation.
The People argue, however, that the “inaccurate information did not affect the court’s decision” and that the order should be affirmed. The People contend that the trial court had the opportunity to rectify its mistake on February 9, 2007 and failed to do so, indicating that the court would have imposed the prison sentence based solely on the two admitted violations. We disagree.
First, the transcript from the February 9, 2007 hearing suggests that neither the court nor defense counsel connected the custody credit mistake with the court’s erroneous finding the week before. The trial court’s failure to alter its ruling thus carries little weight in a consideration of whether the court would have reached the same conclusion based only on the gang colors and failed drug test. Second, in revoking defendant’s probation the court placed primary importance on defendant’s having “blown off” almost two months of ordered custody. The failed drug test was referenced as an afterthought, and the court stated that “all these violations, at once” made the defendant unsuitable for continued probation. Although the court’s comments at the initial sentencing hearing suggest “zero tolerance” for probation violations, this type of cautionary statement is not conclusive of the court’s future discretionary action.
At the hearing, defense counsel (at defendant’s prompting) observed that the court had stated that defendant “blew off” his first weekend commitment. Counsel said he did not know what the court was referring to, and asked only that the record on that narrow point be corrected.
The trial court, in the exercise of its broad discretion, may impose a prison sentence based on the two violations admitted in this case. However, we cannot conclude on this record that the court would have sentenced defendant to state prison based solely on those violations. (See Self, supra, 233 Cal.App.3d at p. 419.)
III. Disposition
The judgment is reversed and the case remanded for resentencing.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Duffy, J.