Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Nos. SD220632, SCE290904, Charles W. Ervin and William J. McGrath, Judges.
BENKE, Acting P. J.
Our disposition of the appeal in this criminal case turns on whether the sentencing judge, in granting appellant probation, suspended imposition of any sentence or instead sentenced defendant to a term of seven years and suspended execution of that sentence. As appellant points out, if the sentencing judge suspended imposition of a sentence, a second judge, upon revoking appellant's probation was required to determine appellant's sentence and do so on the basis of circumstances which existed at the time imposition of sentencing was suspended. On the other hand, if a sentence was initially imposed but only execution of that sentence was suspended, upon revoking probation the second judge was authorized to simply order execution of the previously imposed seven-year prison term.
Admittedly, the record of what the first trial judge did at the time he conducted a sentencing hearing is conflicting. In the reporter's transcript of the sentencing hearing, the trial judge states he is suspending imposition of sentence for a period of three years. However, in the reporter's transcript the trial judge also states the sentence includes "a seven year commitment, which is being suspended for the three-year period of time." Moreover, a written probation order and a separate written minute order clearly reflect that a seven-year prison sentence was imposed and only its execution was suspended while appellant was placed on probation for three years.
We resolve this conflict in the record in favor of the probation order and the minute order. In imposing a seven-year sentence and suspending its execution, those documents reflect the recommendation of the probation department which other parts of the reporter's transcript indicate the trial judge was inclined to adopt without any objection or comment from defendant. Thus, we conclude that at the sentencing hearing conducted by the first trial judge, a seven-year sentence was imposed and its execution was suspended during a three year period of probation.
Because, as we interpret the record, execution of the seven-year sentence was suspended, upon later revoking probation, the second trial judge acted properly in ordering execution of the previously imposed seven-year prison sentence. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying Offense
On the evening of May 21, 2009, defendant and appellant Benjamin D. Saavedra was riding a trolley in La Mesa. At that time he was 20 years old, weighed 220 pounds and was approximately 5 feet 8 inches tall. Earlier that day, Saavedra had a quarrel with his girlfriend, who was the mother of his one-year-old child and pregnant with his second child.
One week earlier, Saavedra was released on his own recognizance after being arrested for felony possession of PCP (Health & Saf. Code, § 11377, subd. (a)). While on the trolley on the evening of May 21, Saavedra was under the influence of PCP, as well as alcohol.
Gail Booke, a slightly built 62-year-old deaf and mute Asian woman, was also riding the trolley on the evening of May 21, 2009. Booke was wearing a gold necklace which had a pendant on it. Saavedra decided to take Booke's pendant as a "make-up" gift for his girlfriend. He pushed Booke against the interior wall of the trolley and grabbed the chain around her neck. Although Saavedra was not able to the get the chain, he did get Booke's pendant and fled from the trolley. Another trolley passenger followed Saavedra and a trolley security officer was able to detain Saavedera until La Mesa police arrived and arrested him. He told the arresting officers that "the lady needed to go back to her own country." Booke was scratched on the face during the robbery and was very traumatized by the incident.
2. Plea and Sentencing
Saavedera was charged with one count of robbery (Pen. Code, § 211). In addition, the complaint alleged Booke was disabled and her disability was known or should have been known to Saavedra (§ 667.9, subd. (a)) and at the time of the robbery Saavedra was on his own recognizance within the meaning of section 12022.1, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
On June 5, 2009, Saavedra agreed to plead guilty to the robbery of Booke and admit the allegation he was on his own recognizance at the time of the offense in exchange for the district attorney's agreement to dismiss the allegation Booke was disabled within the meaning of section 667.9, subdivision (a). The prosecution offered a so-called "low lid" or two-year prison commitment on the robbery charge. However, the judge accepting the plea, Charles W. Ervin, indicated he would sentence Saavedra to local time along with formal probation.
In accepting Saavedra's plea, Judge Ervin asked Saavedra if he understood that "[i]f you violate your grant of probation, the most you could receive for a violation is 7 years in prison, four years on parole, and a $10,000 fine." In response, Saavedra indicated he understood a violation of probation would expose him to a seven-year prison sentence.
Judge Ervin conducted a sentencing hearing on July 13, 2009. The probation department prepared a presentence report and a recommended probation order under which the trial court would impose a seven-year prison sentence, composed of a five-year upper term sentence for the robbery and a consecutive two-year enhancement for being on his own recognizance at the time of the robbery; however, the probation department's proposed order further recommended that execution of the sentence be suspended and Saavedra be granted three years of formal probation In addition, the probation department recommended that Saavedra be held in the custody of the sherriff for 365 days.
In commenting on the probation department's recommendation, Judge Ervin stated: "[T]he court indicated this would be probation and something of 365 or less. The recommendation is consistent with the court's inclination, and that is probation and 365 days in custody. [¶] Counsel, you may be heard, if you wish." Neither Saavedera's counsel nor the district attorney had any comment on the probation department's recommendation. According to the reporter's transcript, receiving no comment from counsel, Judge Ervin then made the following statement: "Imposition of sentence is suspended for a period of three years. He is to violate no laws, no same or similar, other than minor traffic offenses. And this is a seven year commitment, which is being suspended for the three-year period of time."
Judge Ervin went onto impose the grant of formal probation, the requirement that Saavedra serve 365 days in custody, the absence of any possibility of parole, and the credit for time served and good behavior, all of which were set forth in the probation department's recommended probation order. Then Judge Ervin stated: "All the other terms and conditions of the document which were reviewed with him by [his] attorney are ordered at this time."
Judge Ervin then signed a probation order which imposed all of the probation department's recommendations, including a seven-year sentence, execution of which was suspended during the three-year period of probation.
On the minute order prepared by Judge Ervin's clerk, both the words "imposition" and "execution" are circled immediately preceding the words "of sentence is suspended." However, the minute order also states that an upper term of five years was imposed and the bottom of the minute order has a handwritten notation which states: "enh. PC 12022.1—2 yrs. consec to ct. 1 total sent. time suspended = 7 years."
Because alcohol played a major role in Saavedra's prior offenses, one condition of probation was the requirement that Saavedra "[t]otally abstain from the use of alcohol."
3. Probation Revocation and Imposition of Seven-Year Sentence
On December 21, 2009, Saavedra was released from local custody on the robbery conviction.
On January 26, 2010, Saavedra was stopped by police and cited for being a minor in possession of alcohol. On January 30, 2010, Saavedra was arrested and cited by the California Highway Patrol for driving under the influence of alcohol and drugs and driving without a valid driver's license. In a statement to his probation officer, Saavedera conceded that on January 25, 2010, he drank three beers at a friend's house.
Judge William J. McGrath conducted a probation revocation on February 24, 2010. Saavedra waived an evidentiary hearing and admitted that he was in violation of the conditions of his probation. Judge McGrath revoked Saavedra's probation and ordered execution of the previously imposed seven-year sentence. In ordering Saavedra's imprisonment, Judge McGrath stated: "[W]hat tips the scale for me, given this package, is there is no doubt in my mind that the day Mr. Saavedra's feet hits the pavement and he is a free man, he is going to hurt or kill somebody through either drugs or alcohol, or his own hands, because he just does not learn. He is out of control. As out of control as anybody on paper could be.
"He has seven years hanging over his head, and it takes him 35 days to catch three violations of his probation order. And he just does not think and can't control himself. He is a danger to public safety. I am going to keep him off the streets. Probation is denied. He was promised this sentence. It's already been imposed. I am just carrying it out."
DISCUSSION
I
As we indicated at the outset, in his principal argument on appeal Saavedra contends Judge Ervin suspended imposition of sentence and that upon later revocation of his probation, Judge McGrath erred in then imposing a seven-year sentence without considering whether, viewed at the time sentencing was imposed, the circumstances in aggravation outweighed the circumstances in mitigation. As we also indicated, we reject his argument because the record shows that in fact Judge Ervin imposed a seven-year sentence and suspended execution of it.
A. Applicable Law
We agree with Saavedra a trial court's options upon revoking probation depend upon whether in prior proceedings imposition of sentence was suspended or a sentence was imposed but execution of the sentence was suspended. (See People v. Howard (1997) 16 Cal.4th 1081, 1084.) Rule 4.435 (b)(1), California Rules of Court, provides: "If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).
All further rule references are to the California Rules of Court.
"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 or in deciding whether to strike the additional punishment for enhancements charged and found." (Italics added.) In contrast, rule 4.435 (b)(2) provides: "If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment."
However, where as here, there is a conflict in the record with respect to whether imposition or execution of sentence was suspended, we are not, as Saavedra suggests, simply to resolve all doubts in his favor. Rather, "[t]he correct approach is outlined in the following passage from In re Evans (1945) 70 Cal.App.2d 213, 216: 'It may be said... as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case.' [Citations.]" (People v. Smith (1983) 33 Cal.3d 596, 599.)
B. A Seven-Year Sentence was Imposed
Here, we believe the circumstances disclosed in the record provide convincing proof Judge Ervin suspended execution of a seven-year sentence.
We begin by noting that at the time Judge Ervin took Saavedra's guilty plea, the judge advised Saavedra that if probation was revoked he could be sentenced to a term of up to seven years in prison. Thus, from the outset Judge Ervin made it clear to Saavedra that his failure to perform successfully on probation might have severe consequences.
Turning to the later sentencing hearing, we note that while in the reporter's transcript Judge Ervin states he is suspending imposition of sentence, in almost the next breath Judge Ervin states that "this is a seven year commitment, which is being suspended for the three-year period." Thus, the reporter's transcript itself is conflicting.
In resolving the conflicts in this record, we are guided in great measure by the recommended probation order prepared by the probation department and the accompanying probation report. The recommended order is of significance because when, at the sentencing hearing, Judge Ervin made reference to the fact the recommended order reflected his views of the case and asked for comment from Saavedera's counsel, counsel made no comment or objection. We also note that in imposing sentence, Judge Ervin appeared to have been reciting details from the recommended order. These circumstances strongly suggest Judge Ervin intended to follow the recommended probation order and that neither Saavedra nor the district attorney had any objection to the recommended order. The recommended order clearly states execution of a seven-year sentence is to be suspended for three years.
Judge Ervin's intention to follow the recommended probation order is of course confirmed by the fact he signed the order without making any changes to it. This intention is further reflected in the separate minutes which, although they show that both imposition and execution were suspended, also contain handwritten reference to "total sent.time suspended = 7 years" (italics added). The reference to "sent. time suspended" is plainly more consistent with an order which has suspended execution of sentence than one which has suspended imposition of sentence.
We recognize that in selecting the upper term on Saavedra's robbery conviction, Judge Ervin failed to provide any reasons, as required by section 1170, subdivision (b). Saavedra contends the failure to comply with section 1170, subdivision (b) supports his contention Judge Ervin did not intend to impose a sentence. The difficulty we have relying on section 1170, subdivision (b) as a means of determining Judge Ervin's intention is the last sentence of that subdivision, which states: "A term of imprisonment shall be not be specified if imposition of sentence is suspended." Both at the hearing and in the written probation order Judge Ervin clearly specified a term of imprisonment. Thus, if Judge Ervin suspended execution of sentence, his failure to give reasons for the upper term violated 1170, subdivision (b), but if he suspended imposition of sentence, the term he specified also violated section 1170, subdivision (b). Given the fact that no matter how we resolve this issue a violation of section 1170, subdivision (b) occurred, the statute is not very useful is discerning Judge Ervin's intentions.
In our view, the conflict in the record can best be resolved by interpreting the single reference to "imposition" rather than "execution" which appears in the reporter's transcript as either a "slip of the tongue" on Judge Ervin's part or an honest and understandable error by the court reporter. In either event, we believe all the circumstances in the record, taken together, show Judge Ervin intended to and did impose a seven-year sentence and suspend its execution.
C. Imposition of the Seven-Year Sentence Cannot Be Disturbed
By way of alternative arguments, Saavedra suggests that if, as is the case, Judge Ervin imposed a seven-year sentence, he erred in doing so. We find no reversible error.
1. A Seven-Year Sentence was Consistent with the Plea Bargain
Saavedra claims imposition of a seven-year sentence, suspended while he was on probation, violated the terms of his plea agreement, under which the district attorney offered a "low lid" of two years on the robbery charge and two years on the enhancement. However, as the Attorney General points out, in fact the agreement which Saavedra accepted at the time of his plea was the trial court's offer of local time and probation, with the express possibility that he would serve a seven-year prison sentence if probation was revoked. That bargain, under which he could have limited his incarceration to a year, was in fact more lenient than the one offered by the district attorney. (See People v. Jones (1982) 128 Cal.App.3d 253, 258; see also People v. Hopson (1993) 13 Cal.App.4th 1, 2-3.) Thus, on this record it is clear that in imposing a seven-year sentence and suspending it while Saavedra was on probation, Judge Ervin acted in compliance with the plea bargain.
2. Failure to Give Reasons
The Attorney General has conceded that in failing to give reasons for selecting the upper term, Judge Ervin violated section 1170, subdivision (b). However, as the Attorney General points out, by failing to raise any objection in the trial court, either at the time Judge Ervin imposed the seven-year sentence or later when Judge McGrath ordered execution of the sentence, Saavedra has waived any claim of error. (People v. Scott (1994) 9 Cal.4th 331, 356.) "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Ibid.)
Moreover, as the Attorney General further points out, any error in articulating reasons for imposing the upper term was not prejudicial. Having dismissed the disabled victim enhancement, Judge Ervin was free to rely upon Booke's vulnerability in selecting the upper term. (See rules 4.420(c), 4.421(a)(3); People v. Osband (1996) 13 Cal.4th 622, 678.) Because Judge Ervin accepted the reasoning and recommendation of the probation department and imposed a seven-year term, and on this record he could do so, it is not likely that on remand he would impose a lesser term. Thus, the judge's failure to articulate reasons for selecting the upper term, even if the issue had not been waived, would not support a remand. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.)
D. Judge McGrath Properly Ordered Execution of the Seven-Year Sentence
As Saavedra points out, although he waived many of his rights at the time of his plea, he did not waive his Arbuckle rights. While it is true under Arbuckle Saavedra had the right to be sentenced by the same judge who took his plea, Saavedra was in fact sentenced by Judge Ervin. (People v. Beaudrie (1983) 147 Cal.App.3d 686, 693-694.) Once Judge Ervin imposed sentence, Arbuckle no longer applied, and upon revoking probation, Judge McGrath could properly execute the previously imposed sentence. (Ibid.) As we have noted, under rule 4.435(b)(2), Judge McGrath having decided to revoke probation had no discretion other than to order execution of the previously imposed prison term. (See rule 4.435 (b)(2).)
People v. Arbuckle (1978) 22 Cal.3d 749, 756-757.
II
Although Judge Ervin imposed a restitution fine of $200 under section 1202.4, subdivision (b) as a condition of probation and Judge McGrath reimposed the section 1202.4, subdivision (b) fine when he ordered execution of sentence, the abstract of judgment reflects that only one $200 section 1202.4, subdivision (b) fine was imposed on the robbery conviction. Thus, contrary to Saavedra's contention, he was not subjected to dual section 1202.4, subdivision (b) fines for his robbery conviction.
A separate section 1202.4, subdivision (b) fine was imposed with respect to a separate conviction of violating Health and Safety Code section 11377, subdivision (a).
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: HALLER, J., McDONALD, J.