Opinion
E070195
03-05-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHELE DENISE STEPHENS, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1401529) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Michele Denise Stephens, pled no contest to assault by means likely to cause great bodily injury. Pursuant to the plea agreement, the court sentenced defendant to three years of formal probation. Approximately a year and a half thereafter, defendant filed a motion to reduce her conviction to a misdemeanor, which the court denied. On appeal, defendant contends the court erred in denying her motion. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The victim, defendant's sister, testified that on February 23, 2014, she came home and defendant and defendant's daughter ran out of the victim's bedroom. Defendant struck the victim on the side of her face and smashed her hands with a hammer. Defendant and her daughter then grabbed the victim from behind and began beating her with their fists. They dragged the victim to the floor where they kicked her, pulled her hair, and continued to punch her.
The People charged defendant's daughter as a codefendant. Defendant's daughter is not a party to this appeal.
Defendant removed the victim's dentures and smashed them with a hammer. They broke the victim's glasses, an iMac, the television in her bedroom, her iPhone, her iPad, and her car key.
Defendant began cutting the victim's hair with a steak knife. Thereafter, defendant's daughter put shaving cream on the victim's head and shaved her head. They kicked the victim's dog, causing it to defecate; they then tried to put the dog's feces in the victim's mouth, but she resisted. They therefore smeared the dog's feces all over her instead.
Someone arrived at the home in a car; defendant grabbed the victim's wallet and threatened to "beat [her] . . . . [¶] . . . [¶] . . . ass again" if she called the police. The victim suffered a fractured rib, orbital bone, sinus bone, and finger. She sustained lacerations to her head. The victim suffered bruises on her wrists, arms, hand, and chest. Her hand was severely bruised and swollen. The victim was taken to the hospital by ambulance.
The People charged defendant by felony information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and vandalism causing over $400 in damage (§ 594, subd. (b)(1); count 3). As to counts 1 and 2, the People additionally alleged defendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code.
On May 6, 2016, defendant entered the plea as described above. In return, the remaining counts and enhancements were dismissed.
On November 2, 2017, defendant filed a motion to reduce her conviction to a misdemeanor. The motion requested only a reduction of the felony conviction to a misdemeanor; the "points and authorities" consisted solely of a list of three statutes with no points or argument. A "declaration" of defendant was included as part of the motion, reflecting that in order to retain her license for her job as a phlebotomist technician, defendant needed to have her conviction reduced to a misdemeanor: "A felony conviction will result in my termination." The "declaration" is not under penalty of perjury. The court twice referred the matter to the probation department for a "supplemental report."
There does not appear to be an original probation report to have supplemented. --------
In a "Supplemental Memo" from the probation department filed on February 8, 2018, a probation officer reported that attempts to contact the victim had been unfruitful. Defendant had spent a total of 149 days incarcerated and had received 148 days of conduct credit against her sentence of 365 days in jail. Defendant had incurred no new arrests or law violations. She had paid all her court-ordered fines and fees. The victim had requested restitution in the amount of $23,939.99, but, as indicated, attempts to contact her for a restitution hearing had been unavailing.
The probation officer noted that, "[a]lthough the defendant has been cooperative during her grant of probation, due to the violent circumstances of the original offense relief does not appear appropriate." Instead, the probation officer recommended that relief "not be granted until restitution can be assessed and the duration of the grant of probation is completed." After receipt of the "Supplemental Memo," the court referred the matter back to the probation department for a "Restitution Memo."
In a restitution memo filed on March 8, 2018, the probation officer noted that further, unavailing attempts to contact the victim had been made regarding restitution. The probation officer recommended that the court "retain jurisdiction as to the issue of restitution . . . ." In a supplemental report filed on March 13, 2018, a probation officer "recommended that relief pursuant to [sections] 1203.3, . . . 1203.4 and . . . 17, be granted at this time."
At a hearing on the motion on March 13, 2018, the People submitted on the probation officer's recommendation. Defense counsel noted the court had given a tentative decision in favor of granting the motion at a prior, in chambers conference to the extent of indicating that, "If the victim doesn't care, why should I?" Defense counsel asked the court to reduce the conviction to a misdemeanor, terminate probation, and dismiss the conviction. The People indicated they had no concern with an early termination of probation. The court responded: "This is an outrageous case. Restitution is one thing; probation is another."
The court made the following observations: "[Defendant] has a legitimate reason for asking for this. I don't think that it's going to help. She negotiated for a three-year probation. Given the facts of the case, I don't see any reason to grant her this request. This is a really outrageous case in my humble opinion. Dog feces? Come on. That's just outrageous." The court denied the motion.
II. DISCUSSION
Defendant contends the court erred in not reducing the conviction to a misdemeanor, not terminating her probation, and not dismissing the conviction. We disagree.
"The trial court has discretion to 'reduce a wobbler to a misdemeanor either by declaring the crime a misdemeanor at the time probation is granted or at a later time—for example when the defendant has successfully completed probation.' [Citations.] Assault by means of force likely to produce great bodily injury is a wobbler. [Citation.]" (People v. Tran (2015) 242 Cal.App.4th 877, 885.) "Section 17[, subdivision] (b), allows the trial court to determine the nature of such an offense at the time of sentencing or later, namely 'on application of the defendant or probation officer' after the trial court has granted probation 'without imposition of sentence.' [Citation.] '[B]ecause each case is different, and should be treated accordingly, . . . we repose confidence in the discretion of the court to impose a sentence that is appropriate in light of all relevant circumstances.' [Citation.]" (Id. at p. 887.) "'A court [has] broad discretion under [section 17[, subdivision] (b)] in deciding whether to reduce a wobbler offense to a misdemeanor. [Citation.] We will not disturb the court's decision on appeal unless the party attacking the decision clearly shows the decision was irrational or arbitrary. [Citation.] Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. [Citation.]' [Citation.]" (Ibid.; accord, People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
"As used in this section, modification of sentence shall include reducing a felony to a misdemeanor." (§ 1203.3, subd. (b)(1)(B).) The court's discretion under section 1203.3, subdivision (b)(1)(B) to reduce a felony to a misdemeanor is similar to its power under section 17, subdivision (b), i.e., broad and subject to review for abuse of discretion. (See People v. Catalan (2014) 228 Cal.App.4th 173, 179; People v. Wood (1998) 62 Cal.App.4th 1262, 1270 ["Whatever options are available to a trial court under . . . section [1203.3], its authority to reduce a felony to a misdemeanor remains limited by section 17, subdivision (b)(3)."]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Generally, a trial court has the authority and discretion to modify a probation term during the probationary period, including the power to terminate probation early. (§§ 1203.2, subd. (b)(1), (2), 1203.3, subds. (a), (b).) Section 1203.3, subdivision (a) provides, in relevant part: "The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held." (People v. Butler (1980) 105 Cal.App.3d 585, 589; see People v. Davis (2003) 104 Cal.App.4th 1443, 1448.) The denial of a motion to terminate probation is reviewed for abuse of discretion. (Cf. In re Gonzales (1974) 43 Cal.App.3d 616, 620.)
Pursuant to section 1203.4, there are three situations in which defendant may apply for dismissal of a conviction: "[W]hen the defendant (1) 'has fulfilled the conditions of probation for the entire period of probation,' (2) 'has been discharged prior to the termination of the period of probation,' or (3) 'in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under' . . . . [Citations.] If the petitioner comes within either of the first two scenarios, 'the court is required to grant the requested relief.' [Citation.] In such cases, the defendant is entitled to relief 'as a matter of right' and dismissal is mandatory. [Citation.] 'Under the third scenario, the court exercises its discretion whether to grant relief in the interests of justice.' [Citations.]" (People v. Seymour (2015) 239 Cal.App.4th 1418, 1429-1430; accord, People v. Butler, supra, 105 Cal.App.3d at p. 589.) In the third situation, the court is not limited to considering solely the defendant's behavior while on probation. (People v. McLernon (2009) 174 Cal.App.4th 569, 572 [postprobationary behavior relevant to court's exercise of its discretion].) The court's authority to dismiss a conviction pursuant to section 1203.4 is reviewed for abuse of discretion. (See People v. McLernon, supra, at p. 571; accord, People v. Holman (2013) 214 Cal.App.4th 1438, 1463.)
Here, the court acted within its discretion in denying defendant's motion to reduce her conviction to a misdemeanor. The original probation department recommendation was to deny defendant's request "due to the violent circumstances of the original offense . . . ." The court twice noted the circumstances of defendant's offense were "outrageous." The probation officer's recommendation and the court's reasons for denying defendant's motion find ample support in the record as the circumstances of the underlying offense was a relevant circumstance for consideration.
Defendant and her daughter ambushed the victim in her own home. They beat her relentlessly for up to 15 minutes, punching, kicking, and hitting her with a hammer. Defendant and her daughter then attempted to put dog feces in the victim's mouth and ended up smearing it all over the victim's body. They wantonly destroyed thousands of dollars of the victim's personal property, including her dentures. The victim suffered a fractured rib, orbital bone, sinus bone, and finger. She sustained lacerations to her head and bruises on her wrists, arms, hand, and chest. Her hand was severely bruised and swollen. The victim was taken to the hospital by ambulance. The court acted within its discretion in denying defendant's motion to reduce her conviction to a misdemeanor and terminate her probation.
As to the court's denial of defendant's motion to dismiss her conviction, defendant had neither fulfilled the conditions of probation for the entire period of her probation nor had she already been discharged from probation. Thus, dismissal of her conviction was not mandatory. For the reasons stated above, the court acted within its discretion in denying her request for dismissal as not within the interests of justice.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.