Opinion
B318970
02-14-2023
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER TOVILLA, Defendant and Appellant.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA491344, Teresa T. Sullivan, Judge. Affirmed.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
BENDIX, J.
Defendant Christopher Tovilla appeals from an order executing a previously suspended four-year sentence after he violated probation. Although as part of a plea agreement defendant waived his custody credits, he argued below his waiver was not knowing and voluntary because he was unaware of an additional 695 days of credit to which he was entitled under Penal Code section 166, subdivision (e)(5). After holding several hearings and receiving briefing from the parties, the trial court concluded the waiver of all credits was a material part of the plea agreement, and the trial court could not simply award the 695 days of credit to defendant-rather, defendant's remedy was to seek to withdraw the plea and claim ineffective assistance of counsel.
Unspecified statutory citations are to the Penal Code.
Defendant's appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), identifying no issues and requesting this court to review the record and determine whether any arguable issue exists on appeal. We have done so and affirm.
BACKGROUND
Our Supreme Court has directed that "significant efficiency in the processing of subsequent proceedings, including future habeas corpus proceedings, can be achieved if the Courts of Appeal include in their Wende opinions a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110 (Kelly).) The procedural history of this case is complex, and we deem it appropriate to summarize it in some detail.
1. Guilty plea and sentence
On November 17, 2020, the People filed an information alleging that "[o]n or between September 4, 2016 and August 29, 2020," defendant stalked victim G.V. in violation of a previously issued protective order (§ 646.9, subd. (b)). The information further alleged defendant in 2011 had suffered a prior conviction for robbery (§ 211), subjecting him to an increased sentence under the "Three Strikes" law. Defendant's highest potential sentence based on the information was eight years.
Defendant and the People reached a plea agreement. As summarized by the People at the plea hearing on March 22, 2021, the agreement involved, inter alia, "a plea to the stalking; waive all credits; four years suspended; a conditional release to a Salvation Army[ ] residential drug treatment program for one year; a G.P.S. ankle monitor for the first six months," and "four years of formal probation."
Later, the trial court summarized the terms of the agreement for defendant: "You would be sentenced to the high term of four years in state prison. That would be suspended. All your back time would be waived, and you would be released conditionally to a program and ordered to complete that program." The trial court asked if defendant "want[ed] to go forward with that disposition," and defendant said yes.
After receiving further admonishments from the trial court, defendant pleaded guilty to the violation of section 646.9, subdivision (b) alleged in the information. The trial court confirmed the People had dismissed the prior conviction allegation. The court found there was a factual basis for the plea and accepted it.
Prior to imposing sentence, the trial court advised defendant "that you do have a right to your custody credits in this case to be credited against today's sentence or any future sentence. [¶] Do you understand that you do have a . . . statutory right to custody credits for the amount of time that you have served in jail?" Defendant stated he understood. The court stated, "Do you understand that if you waive your custody credits for the time that you have served so far, your waiver will apply to any future prison term should your probation be revoked and the court sentence you to prison?" Defendant again confirmed his understanding.
The trial court asked defense counsel, "[H]ow much credit have you calculated?" Defense counsel said she had not calculated the credit given the waiver, but would do so. The court said, "I do accept the waiver in regard to the custody credit."
The trial court then imposed a sentence of four years, and stated, "The defendant will receive zero custody credits pursuant to the agreement." The court suspended execution of the sentence and placed defendant on four years of probation.
Defense counsel then informed the trial court of the credit calculation, stating defendant "has 98 days actual that he's waiving." The court stated, "All right. 98 days actual waived."
The trial court proceeded with the sentence, reiterating again, "He's receiving custody credits of zero." The court listed the other conditions of probation including, inter alia, obeying all laws and orders of the court, serving 364 days in a residential drug treatment program and being fitted with a G.P.S. monitor for six months.
2. Revocation of probation
On April 8, 2021, the trial court received notice from the probation department's electronic monitoring program that defendant had absconded. The court revoked defendant's probation and issued a bench warrant for his arrest.
On April 20, 2021, the People filed an additional request for revocation of probation contending defendant had violated a restraining order protecting a different victim, J.P.
Defendant appeared on April 22, 2021, and the trial court recalled and quashed the bench warrant. Defense counsel stated defendant was willing to admit the probation violation and waive a hearing, but counsel argued there was an issue with defendant's previous waiver of custody credits.
Defense counsel explained that in addition to the 98 days of credit she calculated at sentencing, defendant potentially also was eligible for credits under section 166, subdivision (e)(5), for time he previously served in county jail for violating the restraining order protecting G.V. Defense counsel stated she did not advise defendant at the time he took his plea that he potentially was entitled to these additional credits, or how many such credits he had. Defense counsel argued defendant therefore did not knowingly and intelligently waive those additional credits.
The People argued section 166, subdivision (e)(5) did not apply under the circumstances of the case, and if it did, it was clear the plea agreement was for defendant to serve a full four years if he violated his probation, regardless of any past credits.
The trial court continued the hearing so it could obtain a transcript of the plea hearing and the parties could provide additional documentation.
At the next hearing on April 26, 2021, the trial court stated it believed section 166, subdivision (e)(5) "may apply," but "[i]t was clearly part of the [plea] agreement that any credit that [defendant] had prior to the date of sentencing, March 22nd, was waived, period, for all purposes." Accordingly, the court found defendant had waived any time he may have been entitled to under section 166, subdivision (e)(5).
Defense counsel again argued defendant's waiver was not knowing and voluntarily, because defense counsel had not advised him of the additional credit to which he was entitled under section 166, subdivision (e)(5). Defense counsel stated that had defendant known of the additional credits, "I believe. . . he would have made a different decision and I would have counseled him to make a different decision . . . ." Defense counsel asked if the court would consider allowing defendant to withdraw his plea, and the court responded, "Not at this time, counsel." The court continued, "You can have someone else determine whether or not this is valid and we can put it over for further hearing, but that's about all I'm going to do today."
Defendant no longer indicated he was willing to admit to the probation violation and waive hearing, so the trial court set a formal hearing. The hearing was continued several times. At one point when the trial court set a new date for the hearing, it indicated it would hear not only evidence of the probation violation, but also additional legal argument as to the section 166, subdivision (e)(5) issue.
The trial court conducted the probation violation hearing on November 3, 2021. Witness J.P. testified that she had an active restraining order against defendant that prohibited him from being near her home. She further testified that in violation of the order, defendant came to her house on April 8 and again on April 17, 2021-that is, a few weeks after the trial court had placed defendant on probation for stalking G.V. The trial court took judicial notice of the restraining order protecting J.P. from defendant, which was issued May 2, 2019, with a 10-year duration. The People also presented the probation officer's report that defendant had absconded.
The trial court ruled that defendant was in violation of probation for failing to obey all laws, and that probation would remain revoked.
The trial court then turned to the issue of custody credits. After hearing argument from the parties, the court stated that during sentencing the court and the parties were focused solely on the custody credits accrued when defendant was in jail prior to sentencing, not the additional credits under section 166, subdivision (e)(5). Thus, the court was "not sure that any of the parties . . . were entering into that waiver [of custody credits] in a knowing and intelligent" way. The court also believed defendant was entitled to those additional credits based on the multiple-year span of stalking alleged in the original information, and the fact that defendant had already served time for some of that conduct when he had been jailed for violating the restraining order protecting G.V. The court stated, "I think that the intent of [section 166, subdivision (e)(5)] is not to punish twice."
The trial court's oral explanation of its reasoning was not as explicit as we describe it here, but we deem our summary a fair extrapolation based on other discussions and briefing in the appellate record. It appears the court and counsel held one or more discussions off the record prior to the November 3, 2021, hearing, based on the familiar manner in which they refer to certain issues not previously discussed in the reporter's transcript before us, which may explain why the trial court's explanation was less explicit than it might otherwise be.
Defense counsel requested the trial court award the credits under section 166, subdivision (e)(5). The People argued if the trial court found defendant had not waived the section 166, subdivision (e)(5) credits, then the plea was invalid as not reflecting the agreement contemplated by the parties and should be revisited. The court scheduled another hearing to address the parties' positions.
In the interim, the parties submitted briefing on the credits issue. The People in their briefing argued (1) defendant's waiver applied to all applicable credits, even those not specified by the court; (2) assuming the waiver did not encompass the section 166, subdivision (e)(5) credits, the proper remedy was for defendant to withdraw his plea, because the court lacked the authority to apply the credits to the existing sentence in contravention of the parties' reasonable expectations; (3) application of the credits would result in an illegal sentence; (4) the defense had waived the credits argument by not raising it at sentencing; and (5) it was speculative whether the conduct for which defendant previously had served time was the same conduct alleged in the information.
Defendant in his briefing argued he was eligible for 695 days of credit under section 166, subdivision (e)(5), because (1) the conduct for which he was previously jailed involved violations of the restraining order protecting G.V. during the same time period in which the information alleged defendant was stalking G.V.; (2) defendant's waiver specifically encompassed only the 98 days he had been jailed prior to sentencing, and therefore did not encompass any other credits; and (3) defendant's suspended sentence was provisional, and therefore the trial court retained the power to modify it to apply the additional credits.
The trial court held a hearing on January 13, 2022. The court stated it was persuaded by the People's briefing that a waiver of all back credits was a material part of the plea agreement, and the court lacked the authority to modify it. The court stated there was "an alternate remedy that's not before the court at this time," presumably referring to a motion to withdraw the plea on the basis of ineffective assistance of counsel, the remedy argued by the People in their briefing. The court further found that determining whether the conduct alleged in the information was the same conduct for which defendant previously had been jailed would require the court "to go way outside of the record and make and introduce evidence that was not before the court at the time the parties made their agreement."
The trial court then executed the previously suspended sentence of four years, and denied defendant's request to apply the 695 days of credit under section 166, subdivision (e)(5). The court did award, however, 544 days of custody and good time credit for the time defendant had served since his arrest for the probation violation.
Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant in this matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by this court of the opportunity to file a supplemental brief; he filed no brief.
We have examined the entire record and are satisfied that counsel has complied with counsel's responsibilities and that no arguable issue exists. (Kelly, supra, 40 Cal.4th at pp. 110- 111; Wende, supra, 25 Cal.3d at p. 441.) We express no opinion regarding defendant's entitlement to withdraw his plea or claim ineffective assistance of trial counsel, none of which is before us in this appeal.
DISPOSITION
The order revoking probation and imposing sentence is affirmed.
We concur: ROTHSCHILD, P. J., CHANEY, J.