Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR065592
McGuiness, P.J.
After the trial court terminated appellant Marcus Wade Smith’s probation, it ordered into execution a previously imposed nine-year term of imprisonment that had been suspended while appellant was on probation. Appellant contends the trial court should have retained full sentencing discretion to reduce his sentence following termination of probation. We are compelled to reject appellant’s claim in light of People v. Howard (1997) 16 Cal.4th 1081, 1095 (Howard), in which our Supreme Court held that a court lacks authority at the pre-commitment stage to reduce a previously imposed but suspended sentence upon terminating probation. Accordingly, we affirm.
Factual and Procedural Background
On October 16, 2006, Eureka police conducted a traffic stop of a vehicle driven by appellant in which his wife, codefendant Amber Smith, was a passenger. Appellant was arrested for driving under the influence. A search of the vehicle resulted in the seizure of methamphetamine, packaging material, a digital scale, and two loaded pistols. Authorities later searched appellant’s home pursuant to a warrant. There, they detained another codefendant, appellant’s half-brother, and placed four children into protective custody. The search of the house uncovered more loaded guns, two digital scales, $2,546 in cash, photographs of appellant’s children posing with guns, and a total of 50.79 grams of methamphetamine, 17.57 grams of cocaine, and 394.94 grams of marijuana.
Because appellant’s conviction was by guilty plea, and because he admitted the probation violations that resulted in the termination of probation, we take the pertinent facts concerning the underlying conviction and the probation violations from various probation reports.
The Humboldt County District Attorney filed a felony complaint on October 18, 2006, charging appellant with the following seven offenses: (1) transportation or sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)); (2) possession for sale of a controlled substance (Health & Saf. Code, § 11378); (3) possession for sale of a controlled substance (Health & Saf. Code, § 11351); (4) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); (5) driving under the influence (Veh. Code, § 23152, subd. (a)); (6) driving with a blood alcohol level of .08 percent or more with a prior conviction for driving under the influence in the previous ten years; and (7) child endangerment (Pen. Code, § 273a, subd. (b)). In addition, it was alleged that appellant committed the drug-related offenses while armed with a firearm. (Pen. Code, § 12022, subd. (c).)
On November 1, 2006, the parties agreed to a joint disposition of all the charges against appellant and his codefendants. Appellant pleaded guilty to transporting or selling a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and admitted being personally armed with a firearm during the commission of the offense (Pen. Code, § 12022, subd. (c)). In exchange for his plea, appellant was promised that if probation were denied his sentence would be capped at five years but that if probation were granted he would be exposed to a sentence of up to nine years. It was agreed that the child endangerment count would be dismissed with a Harvey waiver. The remaining counts were dismissed on the motion of the prosecutor.
People v. Harvey (1979) 25 Cal.3d 754.
The probation report prepared for the sentencing hearing stated that, absent a showing of unusual circumstances, appellant was statutorily ineligible for probation as a result of his two prior felony convictions. At the sentencing hearing on January 11, 2007, the court found that the age of appellant’s two prior felony convictions and the lack of similarity between the prior convictions and the current conviction constituted unusual circumstances rendering appellant eligible for probation. The court imposed a nine-year sentence consisting of the aggravated term of four years for transporting or selling a controlled substance (Health & Saf. Code, § 11379, subd. (a)), with a consecutive aggravated term of five years for committing the offense while armed with a firearm (Pen. Code, § 12022, subd. (c)). Over the prosecutor’s objection that appellant was ineligible for probation, the court placed appellant on formal probation for nine years and suspended execution of the prison sentence.
The court ordered appellant to serve 365 days in jail as a condition of probation, with credit given for 132 days. Among other things, the court directed appellant to enter and successfully complete a residential substance abuse program, and it ordered him not to enter any place where alcohol is the chief item for sale. At the time it imposed the sentence, the court advised appellant he had a right to appeal. When the court asked appellant if he would accept such a “probation-type of sentence,” appellant responded, “Yes, sir.” The court impressed upon appellant the consequence of violating the terms of his probation, to which appellant responded, “That’s why I would not—I would not even—I wouldn’t jay walk.”
On October 23, 2007, appellant was cited for driving a vehicle without a valid license. Three days later, on October 26, 2007, he became involved in a physical altercation at a bar and was arrested. The arresting officer smelled an “overwhelming odor of alcohol” on appellant and reported that appellant had admitted drinking alcohol inside the bar.
Appellant’s probation officer filed a notice on October 29, 2007, charging appellant with violating the terms of his probation requiring him to obey all laws, to abstain from the use or possession of alcoholic beverages, to avoid entering places where alcohol is the chief item of sale, and to abstain from driving without first providing written proof to his probation officer of a valid driver’s license and insurance. On November 16, 2007, appellant admitted violating his probation by being in a place where alcohol was served, by drinking alcohol in that place, and by driving on a suspended license.
In addition, he also admitted a new criminal charge of driving with a suspended license (Veh. Code, § 14601.5, subd. (a)), for which he received probation.
At the sentencing hearing on January 9, 2008, the court announced its tentative decision to terminate probation and order into execution the nine-year prison sentence that had previously been imposed but suspended during the probation term. Appellant’s trial counsel argued, and appellant personally requested, that probation be reinstated.
The sentencing judge, who was different from the judge who originally imposed the nine-year sentence, said he would have denied probation “without question” at the original sentencing hearing on appellant’s conviction for transportation or sale of a controlled substance. The court went on to state: “So I think that an extremely strong argument could have been made that [appellant] should have gone to prison initially. He didn’t. I respect that judge and that decision. But [appellant] knew what was hanging over his head. He wrote a letter to the court saying, in essence, if you give me one more chance, you will never see me back here again. I’m gonna do everything perfectly. I’m gonna be a model probationer. Give me the chance to show you. The judge did. And you didn’t do it. You didn’t do the [substance abuse] programs. You drank. You drove on a suspended license. Do I think that nine years is necessarily the appropriate prison sentence? No. Should I not send somebody to prison that I think should go to prison because another judge previously set a term that was on the upper end? In my opinion, no.”
At the conclusion of the sentencing hearing, the court terminated probation and ordered into execution the previously suspended nine-year prison sentence. The court awarded a total of 288 days of presentence credit against the prison term. Appellant thereafter filed a timely notice of appeal.
Discussion
Appellant’s sole claim on appeal is that he was denied due process of law and a fair sentencing hearing because the trial court was unable to exercise its discretion to reduce the previously imposed nine-year sentence at the time it terminated probation. Appellant contends the court’s comments at sentencing demonstrate that the final sentencing judge would have imposed a lesser term of imprisonment if he had possessed full sentencing discretion.
Appellant acknowledges that under the holding of Howard, supra, 16 Cal.4th 1081, the trial court lacks authority to reduce a previously imposed but suspended sentence upon revocation of probation. Appellant also concedes that this court is bound to follow the decision in Howard. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nevertheless, appellant urges this court to “re-examine the rationale of Howard” and issue a “reasoned opinion” that may become the basis for the Supreme Court to reconsider the issue. We agree that we are bound to follow the decision in Howard but decline the invitation to question the rationale of the decision, which considered and rejected the arguments that appellant claims undermine that court’s holding.
In Howard, the Supreme Court “resolve[d] a conflict among Court of Appeal decisions regarding a trial court’s authority, on revoking probation, to reduce a probationer’s previously imposed but suspended sentence.” (Howard, supra, 16 Cal.4th at p. 1084.) The court held that, “if the [trial] court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage.” (Id. at p. 1095.)
The Howard court focused on the “important distinction, in probation cases, between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) When a court suspends imposition of sentence before placing a defendant on probation, the court has full sentencing discretion upon revoking probation. (Ibid.) By contrast, when a court imposes a sentence but suspends its execution pending a term of probation (sometimes referred to as an execution-suspended-sentence (ESS)), on revocation and termination of probation the sentencing judge must order that exact sentence into effect, subject to its possible recall under Penal Code section 1170, subdivision (d), after the defendant has been committed to state prison. (Howard, supra, 16 Cal.App.4th at p. 1088.) This result is compelled by statutory language in Penal Code section 1203.2, subdivision (c), which provides in relevant part that upon termination of probation, “if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect.” To a similar effect is rule 4.435 of the California Rules of Court (formerly rule 435), which provides in pertinent part that, upon termination of probation, “[i]f the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect . . . .” (Cal. Rules of Court, rule 4.435(b)(2).)
Penal Code section 1170, subdivision (d) provides as follows: “When a defendant subject to this section or subdivision (b) of [Penal Code] Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.”
The Howard court addressed the contention that inclusion of the word “may” in Penal Code section 1203.2, subdivision (c), affords the court discretion to reduce a previously imposed sentence. (Howard, supra, 16 Cal.4th at p. 1094.) The court rejected the argument, reasoning that the statute merely gives the trial court discretion to revoke or reimpose the suspension of the previously imposed sentence. If suspension is revoked and a prison commitment is ordered, however, the statute mandates that the previously suspended judgment shall “ ‘be in full force and effect.’ ” (Ibid.)
Appellant urges that we follow the logic of the appellate court decision in People v. Nubla (1999) 74 Cal.App.4th 719 (Nubla), which addresses the power of the court to modify an interim sentencing order after a defendant who is referred to the California Rehabilitation Center (CRC) is rejected from treatment and returned to court for further proceedings. In Nubla, the court held that the final sentencing judge has the discretion to mitigate, but not increase, a defendant’s previously imposed but suspended sentence upon termination from the CRC. (Id. at p. 729.) Appellant’s attempt to analogize probation proceedings to CRC proceedings fails. The court in Nubla considered whether it was bound by the Supreme Court’s decision in Howard and concluded it was not, reasoning that “[i]n contrast to probation revocation proceedings, . . . there is no statutory or administrative mandate that the previously imposed judgment be in full force and effect upon the defendant’s rejection from CRC.” (Id. at p. 728.) In the probation context, of course, there is both a statute and a rule requiring the trial court to give full force and effect to the previously imposed but suspended sentence upon termination of probation. (Pen. Code, § 1203.2, subd. (c); Cal. Rules of Court, rule 4.435(b)(2).) Thus, we disagree with appellant’s contention that the logic of the ruling in Nubla applies with equal force here.
Appellant also contends that the inability of the final sentencing judge to reduce an ESS sentence upon terminating probation results in an unnecessary waste of time and resources. Appellant points out that the trial court has the power on its own motion to recall a sentence within 120 days after a defendant is committed to prison under Penal Code section 1170, subdivision (d). (See fn. 4 ante.) In such a case, the trial court may resentence the defendant subject to the limitation that the new sentence is no greater than the initial sentence. (Pen. Code, § 1170, subd. (d).) Appellant argues that a judge should be allowed to reduce a sentence at the time probation is terminated without having to wait until the sentence is implemented and the defendant is committed to prison.
Appellant’s argument was considered and rejected by the Howard court, which posed the question, “why should the sentencing court be required to wait until actual commitment before it exercises its resentencing options under [Penal Code] section 1170, subdivision (d)?” (Howard, supra, 16 Cal.4th at pp. 1093-1094.) The court responded that “[t]he obvious answer is that the Legislature has directed that in probation revocation situations any reduction of sentence must occur at the postcommitment stage.” (Id. at p. 1094.) The court went on to state that “[t]he Penal Code preserves the distinction between suspended imposition and suspended execution types of probation. [Citation.]” (Ibid.) A rule permitting the final sentencing judge to reduce an ESS sentence before a defendant is committed to prison would blur the distinction between the two types of probation.
Appellant’s brief perfunctorily asserts without supporting argument that his due process rights were violated as a result of the court’s inability to recall the ESS sentence and mitigate the punishment. Appellant has failed to establish a constitutional violation. At the time appellant was initially sentenced, the trial court exercised its discretion, imposed aggravated terms for both the substantive offense and the firearm enhancement, and stated its reasons for imposing the sentence. Appellant did not object to the sentence at the time, and there is no indication in the record that he appealed from the order imposing the sentence. Indeed, appellant does not suggest there would have been any valid grounds to challenge the initial sentence if an appeal had been taken.
The Howard court did not address constitutional considerations, which it found were not present in the case before it. (Howard, supra, 16 Cal.4th at p. 1095.)
Furthermore, appellant received what the final sentencing judge referred to as a “tremendous break” in being granted probation. Appellant eagerly accepted the opportunity to be on probation and understood the ramifications of his failure to abide by the terms of probation. As the final sentencing judge observed, appellant “knew what was hanging over his head.” Appellant was advised that his plea would result in one of two outcomes—either he would receive probation and face a potentially longer sentence, or he would go to prison immediately and face a shorter sentence. Having failed on probation, appellant cannot now seek to enjoy the shorter sentence that was an option only if the court denied probation at the outset.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.