Opinion
E079943
01-16-2024
THE PEOPLE, Plaintiff and Respondent, v. KEVIN REX RILEY, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sedival, Elizabeth M. Renner, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF1300797 John D. Molloy, Judge. Affirmed with directions.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sedival, Elizabeth M. Renner, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
On resentencing under Penal Code section 1172.75, defendant and appellant Kevin Rex Riley's 20-year sentence was reduced by three years and previously imposed fines and fees were stricken, but the trial court declined to strike a five-year enhancement for a serious felony prior. Riley argues the trial court erred by not ordering a supplemental probation report addressing his postconviction behavior, and by miscalculating his custody credits.
Undesignated statutory references are to the Penal Code.
The People concede the trial court failed to address custody credits at the resentencing hearing, and thus Riley's current sentence does not reflect credit for actual time served between his original sentencing and his resentencing. The People argue Riley forfeited his arguments about the supplemental probation report and, in the alternative, dispute whether Riley has demonstrated error, let alone prejudicial error, from the decision not to order a supplemental probation report. The People also assert the appeal is moot because Riley has been released on parole, and resentencing him would not effect his term of parole, which is set by statute regardless of custody credits, or any fines and fees associated with his sentence, which have already been stricken.
We are not persuaded Riley's appeal is moot. We hold Riley forfeited his arguments about a supplemental probation report, and we decline to address his ineffective assistance of counsel claim based on that forfeiture here, rather than in his pending habeas matter. We remand for the trial court to calculate Riley's custody credits and issue an amended abstract of judgment, but otherwise affirm.
I. BACKGROUND
In 2015, Riley was sentenced to 21 years: eight years for child endangerment (§ 273a, subd. (a), count 5) (the middle term, doubled because of a strike prior); two years eight months for assault with a deadly weapon on a peace officer (§ 245, subd. (c), count 1) (one third the middle term, doubled by the strike prior); one year four months for resisting an executive officer by means of threats or violence (§ 69, count four) (one-third the middle term, doubled by the strike prior); one year each for four prison prior offenses (§ 667.5, subd. (b)); and five years for a serious felony prior (§ 667.5, subd. (a)).
On direct appeal from that judgment, we found one of the prison priors was improperly imposed, but otherwise affirmed. (People v. Riley (Mar. 15, 2017, E063035) [nonpub. opn.] (Riley I).) On remand, the trial court resentenced Riley to a total term of 20 years, consisting of the same sentence but without the reversed prison prior.
In September 2022, Riley's sentence was recalled under section 1172.75, and the trial court struck the remaining three prison priors. The trial court resentenced Riley to a term of 17 years, consisting of the same sentence but without the three stricken prison priors. The court rejected Riley's request that it also strike the five-year term for the serious felony prior.
Section 1172.75, subdivision (a) says, "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid."
Riley appealed from his new sentence. While this appeal was being briefed, in June 2023, he filed a petition for writ of habeas corpus alleging ineffective assistance of counsel, which we ordered to be considered with his appeal "for the sole purpose of determining whether an order to show cause should issue."
In July 2023, Riley's appellate counsel requested, and we granted, leave to supplementally brief whether Riley's release on parole rendered this appeal and his habeas petition moot. Counsel represented that Riley had been "discharged on parole" on an "unknown date" that counsel believed was after the filing of his petition for writ of habeas corpus.
II. DISCUSSION
A. Mootness
The parties dispute whether Riley's release on parole renders this appeal moot; the People argue that it does, Riley disagrees. In our view, Riley is correct. The length of Riley's sentence and the amount of custody credits he has earned may have no practical consequences if he completes his term of parole. Nevertheless, he should be fully informed as to the potential consequences of violating his parole. That requires addressing the arguments he has raised in this appeal about his sentence and custody credits.
Moreover, we have discretion to decide a case, even if technically moot, "when there may be a recurrence of the controversy between the parties." (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479.) We will exercise that discretion here, to the extent it is necessary to do so. The parties' controversy will recur if Riley's parole is revoked for any reason. It is more efficient for all involved that we decide this fully briefed appeal now. We therefore proceed to the merits.
B. Supplemental Probation Report
1. Additional background
During Riley's September 2022 resentencing, he appeared by counsel under section 977 and was not personally present. His counsel initially asked for an opportunity to brief "postconviction factors." Counsel's stated intention was to argue that Riley's age at the time of the offenses should be considered during resentencing. The trial court indicated its willingness to allow counsel to brief the issue, but expressed skepticism that, given Riley's criminal history, any argument about the defendant's "youthful nature" could be "compelling." The prosecutor then pointed out that Riley was born in 1976, and thus was not a youthful offender at the time of the current offenses. Riley's counsel admitted he was mistaken about his client's age and abandoned the request for additional briefing. He asked the court nevertheless to consider "striking the nickel or prior strike because of it being the same conviction being used to enhance his sentence." The court reviewed Riley's current offenses and the predicate offenses for the enhancements, noting that Riley "was not sentenced to the upper term on anything," and also that the victims of the child endangerment counts were aged 4 and 7 at the time of the offenses. It declined the request to further reduce Riley's sentence: "Under these circumstances, based on what I have, I would not be inclined to exercise my discretion there."
2. Analysis
"By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402.) As relevant here, the trial court is expressly authorized to consider "post conviction factors, including . . . evidence that reflects that circumstances have changed since the original sentencing." (§ 1172.75, subd. (d)(3).)
Riley argues the trial court erred by resentencing him without obtaining a supplemental probation report. In his view, that report could have provided evidence of postconviction factors, potentially changing the trial court's decision to reject any additional, discretionary reduction of his sentence.
Riley failed, however, to request a supplemental probation report or object to proceeding without one. "Where, as here, a defendant is ineligible for probation, such omissions result in waiver of a supplemental report in the trial court and forfeiture of the right to object to the absence of such a report on appeal." (People v. Franco (2014) 232 Cal.App.4th 831, 834 (Franco).) "This is so even where, for instance, the issue before the sentencing court was whether to exercise discretion to dismiss a strike," and doing so could have the effect of rendering a defendant eligible for parole. (Ibid.)
We find no merit in Riley's argument that California Rules of Court, rule 4.411(a)(1)(B), makes ordering a supplemental probation report mandatory, so the forfeiture rule stated in Franco would not apply. Under rule 4.411(a)(1)(B), if a supplemental report "is needed to assist the court with other sentencing issues," then ordering the report is mandatory. (Rule 4.411(a)(1)(B).) But it is an exercise of discretion to determine whether a report is needed. (People v. Bullock (1994) 26 Cal.App.4th 985, 990 (Bullock) ["The trial court is in the best position to evaluate the need for an updated report, with the input of counsel"]; see also People v. Llamas (1998) 67 Cal.App.4th 35, 41, fn. 8 [if supplemental report were always needed for court to determine whether to exercise discretion to dismiss a strike, "then the court could never decline to order such a report if a strike were alleged. This clearly is not the law."].) "[T]here should be a sound reason for departing from the preferred practice of making the referral" for a supplemental report. (Bullock, at p. 990.) Nevertheless, we will not presume that the trial court misunderstood the law, and "a timely objection to the absence of a supplemental report would have permitted the court to explain why none was necessary." (People v. Johnson (1999) 70 Cal.App.4th 1429, 1433 (Johnson).)
All rule references are to the California Rules of Court.
Rule 4.411(a)(2), requiring a supplemental probation report where a "significant period of time" has passed since the original report, also "does not compel a different result." (Johnson, supra, 70 Cal.App.4th at p. 1432.) Although the rule, like its predecessor, former rule 411(c), is couched in mandatory terms, it has long been interpreted to require a supplemental report only if the defendant is eligible for probation. (Johnson, supra, 70 Cal.App.4th at p. 1432 ["The only reasonable interpretation of rule 411(c), reading it in light of rule 411(a) and rule 411(b), is that a supplemental report is required only if the defendant is eligible for probation"]; see also Advisory Committee Comment, rule 4.411 [rule 4.411(a)(2) "not intended to expand on the requirements" of previous case law that "generally," but did not always, require a supplemental report].) We decline Riley's invitation to resurrect an earlier line of case law holding otherwise, which for decades has been abandoned even by the appellate district that started it. (Compare People v. Brady (1984) 162 Cal.App.3d 1, 7 (Brady) [holding resentencing court "must obtain a new, updated probation report, including information regarding the defendant's behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing"] with Bullock, supra, 26 Cal.App.4th at p. 989 [concluding Brady was wrongly decided, holding supplemental probation reports are generally recommended in all situations, but are not mandatory if the defendant is ineligible for probation].)
Riley asks that we exercise our discretion to "overlook forfeiture." We deny the request. Through counsel, Riley had a meaningful opportunity to raise an objection, and he offers no reason why his waiver of personal presence at resentencing might be invalid. The questions of law he raises are answered by well-established authority. And it makes little sense to discuss an issue on appeal to "forestall a potential ineffective assistance of counsel claim" on habeas when, as here, there is a habeas petition pending.
Our order requesting the Attorney General to file an informal letter response to Riley's habeas petition stated that we would consider Riley's petition with this appeal solely to determine whether an order to show cause should issue. We have done so and will announce our decision by separate order, rather than discussing the matter here.
C. Custody Credits
The parties agree, as do we, that the trial court erred by failing to address the issue of custody credits during his September 2022 resentencing. Riley's new abstract of judgment reflects the same number of custody credit days as he had at the time of his original sentencing. It does not reflect any additional credit for the time Riley served between that 2015 original sentencing and his September 2022 resentencing. The appropriate remedy is a limited remand for the trial court to recalculate Riley's custody credits and prepare an amended abstract of judgment. (See § 2900.5, subd. (d) ["It is the duty of the court imposing the sentence to determine . . . the total number of days to be credited pursuant to this section"]; People v. Montalvo (1982) 128 Cal.App.3d 57, 62 ["it is the business of the trial court, and not the appellate court, to determine the credit to which the defendant is entitled"].)
III. DISPOSITION
The judgment is affirmed, and the case is remanded to the trial court for the limited purpose of recalculating Riley's custody credits and issuing an amended abstract of judgment.
We concur: RAMIREZ P. J., MENETREZ J.