P. v. Evans
Filed 2/21/13 P. v. Evans CA4/2
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
ANETRISE
EVANS,
Defendant and Appellant.
E055770
(Super.Ct.No. RIF76448)
OPINION
APPEAL from the Superior
Court
of
Riverside
County. Richard Todd
Fields, Judge. Affirmed.
Julie Sullwold, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland,
Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Anetrise Evans appeals from an
order denying her
name="_ftnref1" title="">[1] motion
to dismiss all charges after her assertedly successful completion of
probation pursuant to Penal Code section 1203.4, subdivision (a)(1).
judgment/order.
STATEMENT
OF FACTS
On October
15, 1997, defendant pleaded guilty to
an original term of 36 months. One term
of probation was that
she serve 120 days in
jail, weekends; another was that she make restitution to the victim in an
amount to be determined.
name="_ftnref4" title="">[4]
The record, which consists primarily of minute orders, is
sparse. It reflects first the issuance
of a bench warrant for a violation of
probation on April
22, 1998, and next, the issuance of another bench
warrant on April
26, 2004.
The latter eventually resulted in an admission to a violation of
probation term Nos. 2 and 11
name="_ftnref5" title="">[5] on July 27, 2004. At that time, sentence was imposed but
suspended, and probation was reinstated.
The next document in the record is a report from the work
release program dated December
3, 2004, which appears to reflect a failure to
appear. It also reflects two previous
failures to appear. On February 10, 2005,
an order was made continuing probation on the “same terms and conditions,†but
purporting to modify it to reinstate weekend custody “defendant having missed
weekends is to resume commitment on 2/25/2005.†A substantially identical
also directing defendant to “resume commitment on 4/29/2005â€; this was
apparently prompted by yet another failure to appear report dated February 28, 2005.
On June
28, 2006, the trial court entered an order revoking
probation after an allegation of violation was made; again a
without notifying the probation office, so that a letter directing her to come
in to provide a DNA sample was returned to sender. The next document dated November 5, 2007,
simply states that whatever proceedings were pending were taken off
calendar. A minute order from November
26 indicates that the bench warrant previously issued remained outstanding.
Matters picked up on December 4, 2007, as defendant was
present and again admitted violation of probation—this time term Nos. 1 and 11.
defendant, as apparently pertinent to this appeal, was ordered to “[r]eport to
and cooperate with Enhanced Collection Div. immediately or within two business
days of release from custody.â€
On
April 8, 2008,
yet another allegation of violation of probation was filed, this one expressly
stating that defendant still owed $1,497 on her restitution fine. (It will be noted that by this time over
fine was imposed.) Once again, defendant
admitted the violation; this time the documents reflect that probation would be
extended “2 years or until restitution is paid in full, whichever is sooner.â€
By December
15, 2009, however, defendant had evidently
completed payment of her restitution fines as counsel requested termination of
probation “per the agreement in the plea form.
She’s paid her fines.†The People
did not object and the requested order terminating probation was made. As defendant notes, the minute order
indicates that her attorney made an “oral motion†“to terminate probation
early,†and also indicates that “Per Plea Agreement probation will be
terminated early upon all fines/fee pay in full . . . Motion Granted
Probation Terminated Early.†However, as
we will show post, this is
misleading.
About
two years later, defendant filed a motion to set aside her plea and dismiss the
complaint under section 1203.4. The
People objected on a form, which pointed out her violations of probation (or
some of them), and also asserted that she had “committed new crimes in Mohave
in 2004 while on probation in this matter.â€
At the hearing on January
9, 2012, the trial court stated that it was “not
inclined to grant the motion. This is
one of the more terrible probationers I’ve seen . . . [y]ou know,
this probation started in 1997.†It then
proceeded to recite the history of warrants and violations, which we have set
out ante, and concluded that “the
defendant clearly did not fulfill all the terms of probation for the period
thereof, nor was this an early termination of probation . . . it was
determinate that when the restitution was paid in full, or two years, which is
sooner. [Sic] So there was no early
termination.†The trial court also
declined to exercise its discretion in defendant’s favor. It denied the motion, and this appeal
followed.
DISCUSSION
Section 1203.4, subdivision (a)(1), provides that a court
shall order the original charges dismissed if the defendant has “fulfilled the
conditions of probation for the entire period of probation, or has been
discharged prior to the termination of the period of probation, or 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 this
section, . . .†Wisely, defendant does
not contend that she qualifies under the “fulfilled the conditions of probation
for the entire period of probation†or that the trial court should have
exercised its discretion in her favor; she does argue that she is entitled to
relief because she was discharged from probation “prior to the termination of
the period of probation.†(
The
purpose of section 1203.4 is to provide a special benefit to an individual who
successfully completes probation, and to encourage the probationer to comply
with the terms of his or her probation.
(Doe v. California Dept. of
Justice (2009) 173 Cal.App.4th 1095, 1114; People v. Covington (2000) 82 Cal.App.4th 1263, 1270.) It is woefully apparent that the statute was
ineffective at achieving the latter goal, and that it would be quixotic to
reward defendant for over 10 years of either recalcitrance or, at best,
indifference. However, if the terms of
section 1203.4 apply, relief is mandatory.
(People v. Mgebrov (2008) 166
Cal.App.4th 579, 584; People v. Chandler (1988)
203 Cal.App.3d 782, 788.)
We
agree that the fact that the trial court repeatedly extended the term of her
probation does not mean that she cannot qualify for “early termination.†(People
v. Butler (1980) 105 Cal.App.3d 585, 588.)
And, because fulfilling the terms and conditions of probation and
receiving early termination are separate bases for relief, defendant’s poor
performance similarly does not disqualify her.
(Id. at p. 587.) However, we agree with the People that her
probation was not terminated early.
As
noted ante, the December 15, 2009
minute order does refer to “early†termination of probation. However, the reporter’s transcript—all 20
lines of it—contains no such reference.
We quote the pertinent exchanges:
“THE COURT: The
matter is on calendar—added on for some reason?
“[DEFENSE COUNSEL]: Yes.
It’s to terminate probation per the agreement in the plea form. She’s paid her fines.
“THE COURT: Okay.
“[DEFENSE COUNSEL]:
And probation should be terminated.
“THE COURT: Any
objections, [prosecutor]?
“[THE PROSECUTOR]:
No objections, your Honor.
“THE COURT: All
right. Probation is then ordered
terminated at this time.â€
name="_ftnref8" title="">[8]
Thus, the trial court was simply not asked to terminate
defendant’s probation early, and
there is no indication that it intended to do so. Insofar as there is a conflict, we find the
transcript of the oral proceedings more credible and reflective of what the
trial court actually ordered. (See
11, 13, fn. 1.) The references in the
minute order to “early†termination we believe reflect only the clerk’s
misunderstanding of the record.
On May 8, 2008, the trial court told defendant that “your
probation will terminate either after two years, or upon full payment of the
restitution . . . .†We
agree with the People that this reflects alternative termination dates and that
the earlier date for termination does not constitute an “early†date within the
meaning of section 1203.4. The trial
court’s general authority to grant a defendant an early discharge from
probation is provided by section 1203.3, which reads in 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.â€
Obviously, this is intended as a reward for speedy rehabilitation; the
court may also grant an early termination where it is convinced that the
probationer is simply unable to comply with the mandated terms. (See People
v. Butler, supra, 105 Cal.App.3d
at p. 587 [probationer who had not made restitution was discharged early
from probation after the court reviewed a medical report showing probationer to
be totally disabled and unable to earn money].)
Here, the trial court’s order in 2008 was designed in the least onerous
manner to allow defendant still more time to comply with the restitution
order—that is, so that she would be free of probation as soon as she completed
payment.
title="">[9] As the trial court recognized when it
terminated probation, having paid her fines she was entitled to be discharged;
the order was not a discretionary act in recognition of her good conduct or
other factors. She paid her fines and
probation therefore terminated; the trial court’s formal order was ministerial
in nature.
DISPOSITION
Accordingly, the trial court correctly found that there
was no “early†termination of probation and correctly refused to grant
defendant relief under section 1203.4.
The judgment/order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting
P.J.
We concur:
McKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] At a hearing held July 27, 2004, at which
defendant was present, the trial court addressed defendant as “Miss
Evans.†The reporter’s transcript for
December 4, 2007—at which time defendant was again personally present—reflects
that counsel stated to the trial court that “mental health court has been
working with Mr. Evans. He’s currently
in a program . . . .†At
subsequent hearings, defendant was generally described by female titles or
pronouns, although at the last hearing on January 9, 2012, it is clear that
nobody was sure of defendant’s gender (defendant was not present). However, the preliminary hearing contains
testimony from persons who at least viewed videotapes and spoke with a codefendant,
and defendant is therein described as “she†or “Miss Evans.†We note that the preliminary hearing appears
to have been held solely on behalf of one Aledia Davenport, who is named as a
codefendant in the complaint. Davenport
and defendant are described as sisters.
In a nutshell, Davenport brought merchandise to a register manned by
defendant, who either did not ring up all the items or voided them after making
entries. We refer to defendant as “sheâ€
based on the weight of the evidence and apologize if we are in error.
name="_ftn2" title=""> [2] All further statutory references are to the
Penal Code unless otherwise indicated.
