Opinion
A147421
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. QUINCY WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 219308)
Defendant Quincy Walker appeals after the trial court revoked his probation and executed a state prison sentence that had previously been stayed. Defendant's counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has also been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm the judgment. However, we remand the matter for the clerk of the court to correct a clerical error on the abstract of judgment.
BACKGROUND
On January 11, 2013, after a preliminary hearing, defendant was charged in a five-count information with second degree robbery (Pen. Code, § 211, count 1), two counts of attempted second degree robbery (§§ 664/211, counts 2 and 3), and two misdemeanor counts of resisting, obstructing, delaying of a peace officer (§ 148, subd. (a)(1), counts 4 and 5). The information also alleged that defendant had two prior serious or violent felony strike convictions (§ 667, subd. (d) and (e)); two prior serious felony convictions within the meaning of section 667, subdivision (a)(1); and three prior felony convictions for which appellant served a separate prison term within the meaning of section 667.5 subdivision (b).
Further undesignated statutory references are to the Penal Code.
On May 20, 2014, defendant entered guilty pleas to all counts of the information, and he admitted that he had suffered all of the alleged convictions. The plea was an "open plea" to the court, although the court indicated (and reiterated) that it intended to sentence defendant to 15 years in state prison, execution of sentence suspended, pending defendant's successful completion of probation and the Asian American Recovery substance abuse program. After defendant entered his guilty plea to the information, the trial court, as agreed and pursuant to section 1385 dismissed defendant's two prior strike convictions under section 667, subdivisions (d) and (e), and the three prison priors under section 667.5, subdivision (b).
Judge Collins stated before defendant changed his plea: "Let me get something really straight . . . I'm going to sentence you to 15 years in the joint. And I'm going to give you probation, though. That's hanging over your head, which means, because I'm doing that, if you mess up at all—if you walk out of that program and don't successfully complete it or after completing it, you pick up another new case—you are going to come back before me, and one of the things I'm promising is, barring something really, really unusual, I will put you in prison for that 15 years. [¶] Your attorney has convinced me this is the right thing for you. The Asian American Recovery is a great program. . . . But I want you to know that I'm doing this over the objection of the district attorney. They want you to go . . . to prison for a long time. I am taking a chance. And because I'm taking that chance, I really will drop the hammer on you and put you in for 15 years. I won't like doing it, but I will. I want to make sure you understand that."
When defendant was sentenced on June 11, 2014, the trial judge, as he had indicated, sentenced defendant to state prison for an aggregate term of 15 years. Defendant was sentenced to the upper term of five years on count 1; two years (the midterm) on count 2, to run concurrently; 2 years (the midterm) on count 3, to run concurrently; and on each of the two section 667 subdivision (a) prior convictions that defendant had admitted, five years to run consecutive; plus fines and fees. Execution of sentence was suspended, and defendant was placed on probation for five years with various terms and conditions, including that he spend a year in the county jail which could be completed in the Asian American Recovery program where he was required to participate in and complete the drug and alcohol program.
First Motion to Revoke Probation
On January 5, 2015, defendant admitted violating his probation. According to the supplemental report prepared by the San Francisco probation officer, defendant was delivered to Asian American Recovery program on June 26, 2014, and absconded from the program on August 30, 2014. The report also describes an incident that occurred on September 25, 2014, based on a police report, in which defendant waved a knife in public while talking to himself, causing witnesses to call the police because defendant seemed to be "mentally unstable." Following the incident, San Francisco police officers took defendant to San Francisco General Hospital where he became "enraged," verbally threatened the officers, threatened to kill himself, attempted to kick out the rear window of the car and began kicking furniture and screaming as he was brought into the hospital. But pursuant to a negotiated disposition and at the urging of the district attorney, the court reinstated probation, reminding defendant repeatedly that the suspended 15-year prison sentence still remained if he violated probation again. Defendant's probation was reinstated and modified requiring him to serve one year in the county jail, plus one year in a residential treatment program such as Walden House or another approved program. Defendant waived 859 days of custody credits for purposes of the plea, but with the understanding that "[i]f for some reason I were to impose the sentence, you would get all of those back."
On May 8, 2015, the trial court (Judge Sylvia Husing) signed an order for transportation permitting defendant to be released from the jail and delivered to Victory Outreach Men's Recovery Home, in lieu of the Walden House program. Victory Outreach describes itself as a drug abuse residential treatment program.
Second Motion to Revoke Probation—At Issue in This Appeal
In early July 2015, the San Francisco Probation Office filed a motion to revoke defendant's probation, on the ground that defendant had been dismissed from the Victory Outreach treatment program, and defendant was notified to appear in court on July 23, 2015. Defendant did not appear on that date, and the court issued a bench warrant and administratively revoked probation.
On August 3, 2015, the district attorney filed a petition to revoke defendant's probation on the grounds that he had violated conditions of probation.
The declaration in support of the motion to revoke relied on the "forthcoming supplemental probation report," and a specifically identified police report. Neither is part of the record, and the trial court clerk submitted a declaration filed May 13, 2016, stating that this item is missing from the record, and it could find no supplemental probation officer report filed prior to the hearing held on January 29, 2016.
On September 8, 2015, defendant's counsel declared a doubt pursuant to section 1368. Criminal proceedings were suspended and the trial court ordered that defendant be evaluated per section 1369. On December 14, 2015, after evaluating the medical report, the court found defendant mentally competent and criminal proceedings were reinstated.
The trial court held an evidentiary hearing on the probation violation on January 29, 2016. The district attorney called three witnesses and defendant also testified. We summarize the evidence.
Anthony Medina testified that on September 1, 2015, at approximately 8:54 a.m., he was working as the front desk clerk at the Vincent Hotel for the Tenderloin Housing Clinic at 459 Turk Street, San Francisco when he saw defendant in front of the building. Defendant was "bare chested" and had a hammer in his hand and was speaking loudly to one of the tenants who was also out front. Defendant sounded angry and was yelling, and "acting irrational." Medina, who was responsible for the area in front of the building, went out front, opened the gate and made eye contact with defendant. Medina was about six to eight feet away from defendant; defendant stared at him. Medina was concerned that defendant was "on some kind of substance." Medina said nothing, but defendant "got an attitude about me being there" and said, " '[y]ou know, you got a big fucking nose.' " Medina was concerned about what defendant might do next, so he called the police. When the police arrived, Medina saw them take a hammer out of defendant's back pocket, and defendant acted angry and belligerent toward them. Medina saw an exchange between the officer and defendant, but couldn't hear what was said, and saw the police officer spray "mace" in defendant's face. On cross-examination, Medina testified that he did not see defendant swing the hammer at anyone, but "[s]winging of the hammer was not the menacing part. The menacing part was he had the hammer in his hand, speaking loudly, acting irrationally, and calling me that I have a big nose." After defendant made that comment, Medina concluded defendant was dangerous to him and called 911.
The next witness was Rodney Freeman, a uniformed San Francisco police officer who responded to 459 Turk Street on September 1, 2015, at approximately 8:54 a.m., along with his training officer, Officer Harris. He identified defendant as the person he saw on the sidewalk when he arrived at the scene. At that point, defendant had the hammer in his back pocket. Defendant complied with Freeman's request to put his hand on top of his head so that Freeman could take the hammer, and complied with Freeman's order to have a seat on the sidewalk because he was being detained. But within a few seconds, defendant got back up and began pacing up and down. Freeman asked for defendant's ID, but the California ID that defendant handed over was not him. After asking defendant to sit down (and defendant not complying), defendant took a "defensive position as in like he wasn't following our commands" and stepped back against the wall. Eventually Officer Harris used pepper spray on defendant because he wasn't following verbal orders. The officers then pushed defendant to the ground and handcuffed him, while defendant tried to pull away and resist being handcuffed.
On cross-examination, Freeman testified that Walker was arrested for assaulting Medina. By defensive position, Freeman meant that "[a]s he was pacing back and forth, he wasn't complying so he backed up against the wall as a face-off, staring down at me and my partner, not moving, just wasn't going to move, wasn't following our commands." Freeman felt that Walker was being "aggressive."
The next witness was Shinika Parks, an adult probation officer employed by the City and County of San Francisco in the post release community supervision division. Defendant has been one of her probationers since October 2014. Defendant was sentenced on June 11, 2014, and one of the conditions of his probation was that he participate in the Asian American Recovery program. As of the time that Parks was assigned to supervise defendant, he was already in the Victory Outreach program in Fremont. She went to visit defendant and the director of the house on three separate occasions. At first, defendant was "okay" with the program but wanted to be closer to his mother in San Francisco. And he "had an issue" that he couldn't use his pain medication there "because it was putting other people's sobriety in jeopardy, and he had agreed previously to wean off of the medication." At the second visit, defendant wanted another program, and said he couldn't stay at Victory Outreach; it was a medication issue. And at the third visit, Parks spoke to the director who said that defendant hadn't "weaned off the meds" and he would have to do so, or be dismissed from the program. Parks told defendant that if he left the program, he would be in direct violation of the court ordered terms of probation. Defendant said he understood. Defendant told Parks that he had been calling another program in San Francisco trying to be admitted, but hadn't heard back from them, and was trying to call his attorney. Parks volunteered that she would do what she could to try to call the program, and if and when a bed became available she would transport him to the program, which defendant also said he understood. But the following day, July 10, 2015, the director of Victory Outreach called Parks and told her that defendant "chose to leave the program so we're dismissing him."
Parks' recollection was refreshed by reviewing the five-page report she drafted in connection with the motion to revoke probation, marked and admitted in evidence as People's Exhibit 1. The exhibit is not part of the record on appeal.
Between July 10 and September 1, 2015, Parks's contact with defendant consisted of him calling her on the telephone one time. "I told him he knew he wasn't supposed to leave the program. Come and see me. I filed a motion to revoke so I can give him his notice to appear." This call was sometime before the court-ordered hearing date of July 23, 2015, and definitely within the first week after he left Victory Outreach.
After the bench warrant issued for defendant on July 23 (when he failed to appear in court), Parks got word from a program (she couldn't remember whether it was Walden House or HealthRIGHT) that defendant was supposed to go to the program for an assessment, to which she responded that defendant had a warrant and had missed his court date, and to let defendant know that the only thing he could do was turn himself in. She had no way of contacting defendant herself, except the last known Victory Outreach address. When defendant walked away from the Victory Outreach program on July 10, 2015, he was no longer in compliance with the terms of his probation.
Defendant testified on his own behalf. He "vaguely" recalled the incident at 459 Turk Street on September 1, 2015. When asked why he was there, he said "I think I was—I'm trying to like—I thought somebody was following me so I was—I was in one place too long so I left. I was right there. No particular reason." He was homeless at the time and sleeping on the sidewalks. He was going to a methadone clinic next to the hotel; he was "[g]etting a lot of problems, so I was kind of scared, you know." He was scared because his friend had been killed, and "I thought people was trying to kill me." He tried to seek some help at "the psychiatric unit in General" (presumably, San Francisco General Hospital); "[i]t's been a long problem just about me getting like trauma."
When asked about where he got the hammer, he testified "I was just trying to walk in the streets at night," and he found the hammer and got it to "[j]ust protect myself, if need be." He didn't intend to hit anybody with it. As for that morning, "I don't think I was swinging it. . . . I talk with my hands a lot so I might have just been talking and that was in my hand and he might have seen me gesturing with it (indicating)." "I don't think I was wildly moving it, but I wasn't soldier like still." Defendant answered yes to the question that he was "a bit out of your head." "Just I didn't know what to do next. Frustrated."
Defendant admitting leaving Victory Outreach after only two or three months in the program because the director told him he had to end his treatment with a physician who was prescribing pain medication, and defendant said he would not do that. Defendant said he called Parks, but she said there was a motion to revoke his probation already filed. Defendant testified that he was at General Hospital on "[t]he 22nd when I was supposed to go to court." When asked if he did anything to clear up the bench warrant, defendant testified that "I went to behavioral center . . . on Bryant Street where I know some doctors was there that I talk to, frustrated, and told them what I was going through."
The court hearing was on July 23, not July 22.
On cross-examination, defendant admitted that he remembered taking the plea open on June 11, 2014, and remembered Judge Collins telling him at that time that if he did not comply with the terms of probation that he would be sentenced to 15 years in state prison. Apparently referring to the events that led up to the first motion to revoke probation, his admission then that he violated probation, and the subsequent reinstatement on probation, defendant admitted that he recalled leaving Asian American on August 30, 2014, because he wasn't receiving the pain or anxiety medication that he required, and that he enrolled himself in the Salvation Army program. He understood that the terms of his probation required him to be in residential treatment and that he was not allowed to be on the street. He admitted that he was discharged from the Salvation Army program three weeks later on September 14, 2014, for disruptive behavior toward the staff, and at that time, he turned himself back into custody in October 2014. He admitted that his then attorney got him into the Victory Outreach program. He admitted that when he admitted the first violation of probation, he acknowledged that there would be a 15-year state prison sentence if he violated terms of probation and was not enrolled in a program.
When asked why he did not go to the probation department directly after leaving Victory Outreach, he said, "I got just a little scared, I lost it, just wasn't thinking right." And when asked why he didn't physically go to see Parks after he telephoned her, he said, "I think I felt she didn't have none of my interests at heart, that she was just biased against me and all she wants was for me to be in custody." But defendant admitted that he knew why he would be in custody.
From July 10 to September 1, 2015, defendant testified he went frequently to the "behavioral health center" that he believed was on Howard Street. He didn't turn himself into custody, as he did in October 2014, "[j]ust out of fear." "[J]ust scared."
The prosecution in closing argument conceded that it was not easy to ask the court to revoke probation for 15 years state prison, but that it was warranted here. "Mr. Walker has been in three different programs. Your honor took this plea away from the people in order to give Mr. Walker that opportunity. [¶] The People even acquiesced to a second modification so that he can receive the help that he needed because the People do understand he does have—he's basically dual diagnosis at this time. [¶] But Mr. Walker has shown that he cannot on his own at this time comply with the terms of the probation that have been set out for him time and time again. [¶] The People feel that he's not going to be successful, that he will walk away from another program or be removed from another program and that he won't be able to comply—and this is a five-year probation . . . ." Noting that in a year and a half of probation defendant already had one violation for "walking away from a program," the district attorney argued that defendant was essentially telling the court that there was no suitable program for him. In the district attorney's view, defendant was a danger to himself and to others, was still suffering with substance abuse, which either was not addressed or seemed to have relapsed, and he recommended the court revoke defendant's probation.
Defense counsel argued that it remained within the court's power to impose the executed sentence, but then recall it while counsel could search for a program that would work for defendant. Defense counsel contended that defendant had psychological problems of some sort, episodes of paranoia, and substance abuse. Defense counsel contended that defendant wasn't a threat to public safety, and didn't attempt to hurt anybody. "His problem has been compliance with these programs that he's been asked to complete."
In rebuttal, the district attorney recalled that defendant's prior attorney did a "really thorough job in getting him a program, and it was very detailed and we worked tirelessly for [defendant] at that time. [¶] At that point it was told to him that he was not allowed to have the medications. He knew what the requirements were for Victory Outreach. He practically begged to go to that program. And I was like, we'll give you this last chance. But at this point it's like enough is enough." "[I]t's a compilation of not wanting to comply with the sentence that you agree to."
The trial court found that there was "more than sufficient evidence[] that Mr. Walker has in fact violated his probation." As to any further motions that defense counsel might wish to file, the trial court noted that it was entirely up to defendant and defense counsel.
Defendant waived formal arraignment for judgment and sentence, and indicated there was no legal cause why judgment should not then be pronounced. Before the trial court imposed the sentence, he said, "Before I sentence you, Mr. Walker, I want to read to you what I said to you, not even—this is at the beginning. And you still got another break." The trial court then recited what he had stated at the time execution of the 15-year sentence was suspended in 2014, as we have already described above, about taking a chance on defendant and the certain consequences if defendant violated probation.
The trial court then sentenced defendant to 15 years state prison: the upper term of five years on count 1; two years (the midterm) on count 2, to run concurrently with count 1; two years (the midterm) on count 3, to run concurrently to count 1. Counts 4 and 5, the misdemeanors, were credit for time served, and discharged. As a result of defendant's admissions to two serious prior felony convictions, he was sentenced to an additional five years in state prison for each, under section 667, subdivision (a)(1), to run consecutive. Defendant was given credit for 913 days time served plus conduct credits of 91 days, for total custody credits of 1004 days. Defendant was ordered to pay a $300 probation revocation restitution fine, a $300 restitution fine, and an additional restitution fine in the same amount but suspended.
The abstract of judgment and commitment describes these enhancements as being pursuant to section "667.5(a)(1)PC," but this is incorrect. There is no such section in the Penal Code. The trial court stated at sentencing that these were "section 667(a)(1) priors." This is also consistent with the commitment order filed June 11, 2014, which states that defendant is "sentenced to 5 years SP for both admitted 667A priors for 10 years SP, consecutive," but that execution of sentence was suspended at that time. As we have noted, the trial court dismissed the section 667.5 enhancements pursuant to section 1385 on May 20, 2014. ("As to the three priors pursuant to 667.5(b), I am going to, in the interest of justice and pursuant to my power under 1385, to dismiss those.") Otherwise the abstract of judgment is correct. --------
Defendant timely filed a notice of appeal from the contested violation of probation.
REVIEW
We have reviewed the entire record as required by People v. Wende, supra, 25 Cal.3d 436. Our independent review reveals no arguable legal issues within the meaning of People v. Wende that require further briefing.
Defendant was represented by competent counsel who protected his rights and interests. Defendant received notice and a hearing on his probation violation that is the subject of this appeal. Substantial evidence supports the trial court's finding that defendant had violated the terms of his probation. The trial court did not abuse its discretion in terminating defendant's probation and imposing the suspended sentence. We see no error in the calculation of custody credits, fine or fees.
DISPOSITION
We have found an apparent clerical error in the abstract of judgment and commitment, as described above. The enhancements imposed by the trial court were pursuant to section 667, subdivision (a)(1), not section "667.5(a)(1)." This does not affect the sentence and a remand for resentencing is not required. The clerk of the court is directed to prepare an amended abstract of judgment reflecting the sentence actually imposed by the trial court and to forward a certified copy to the Department of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.