P. v. Grant

Filed 11/30/09 P. v. Grant CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Elizabeth A. Lippitt, Judge. Affirmed.

Linda L. Gordon, under appointment by the Court of Appeal, for Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, and Steven D. Matthews, Deputy Attorneys General, for Respondent.

_________________

INTRODUCTION

Appellant pled guilty to several offenses and admitted prior prison terms. The trial judge suspended execution of the four-year prison sentence and placed appellant on probation. Several years later, after appellant violated his probation, a different judge ordered the execution of the previously suspended four-year sentence. Appellant contends this sentence was illegal because one year earlier the original sentencing judge had reduced the suspended sentence from four years to two years. We reject this contention and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with petty theft with a prior, second degree commercial burglary, and resisting a peace officer. It was further alleged appellant had seven prior convictions (Pen. Code, 1203, subd. (e))[1]and seven prior prison sentences ( 667.5, subd. (b)).

In May 2005, appellant pled guilty and admitted serving two separate prison terms. The trial court (Judge Barry A. Taylor) imposed and then suspended execution of the following sentence: (1) the midterm of two years for the theft, plus two consecutive years for the prior prison terms; (2) the midterm of two years for the burglary, stayed pursuant to section 654; and (3) 120 days in jail for resisting a peace officer, with credit for time served. The court placed appellant on three years formal probation under certain terms and conditions.

In February 2006, appellant admitted he had violated his probation due to a new arrest. The trial court revoked appellants probation and then immediately reinstated it on the same terms.

In April 2006, the court again revoked appellants probation and issued a no bail bench warrant for his arrest. Two months later, appellant surrendered on the warrant, and he was incarcerated. The trial court ordered a supplemental probation report and scheduled a probation violation hearing.

At the probation violation hearing on January 9, 2007, Judge Taylor stated, Ill indicate an indicated sentence of two years state prison on the violation, advised appellant of his rights, accepted his admission that he violated the terms of his probation, and continued the matter for sentencing.

The sentencing hearing took place on July 3, 2007. Judge Taylor said, This was an admission to a violation of probation way back in January . . . . [] . . . [] There was an indicated of two years on this case. . . . [] . . . [] . . . Im going to do something I dont very often do, and thats change an indicated. . . . I will in this case because, you know, looking at it on the one hand, you can say that the client got a pretty good deal the first time around. He has been to prison, that didnt stop him from doing what he was doing, he has been on diversion, Prop. 36, he has been on probation in this court. I hope this is it. I really do because youve got a lot of potential. . . . Ill give you one more chance. . . . [] . . . [] . . . But this has got to be it. It really does. [] So I will suspend[] two years. That means if you come back on a violation, youre going to do the two years. Youre to remain on probation. [] Probation will be reinstated on the same terms and conditions.

In February, 2008, the trial court once again revoked and reinstated probation.

On July 14, 2008, the court (Judge Elizabeth A. Lippitt) conducted a probation violation hearing and after hearing evidence found appellant in violation of probation. Judge Lippitt terminated probation and ordered into execution the previously suspended sentence two years for the theft, plus two consecutive years for the prior prison terms, and a stay of the two-year sentence for burglary.

DISCUSSION

Appellant contends the four-year sentence imposed by Judge Lippitt was illegal because on July 3, 2007, Judge Taylor had reduced the sentence from four years to two years. More specifically, appellant claims Judge Taylor properly reduced the sentence under section 1203.3,[2]and that Judge Lippitt was bound by the reduction. We disagree.

The Trial Courts Authority on Revocation of Probation

When a trial court imposes but suspends execution of a sentence, places the defendant on probation, later finds the defendant in violation of probation, and thenorders probation revoked, the court has three options: (1) reinstate probation on the same terms, (2) reinstate probation on modified terms, or (3) terminate probation altogether, revoke the suspension of execution of sentence, and commit the defendant to prison on the original sentence. ( 1203.2; People v. Medina (2001) 89 Cal.App.4th 318, 321-323; People v. Howard (1997) 16 Cal.4th 1081, 1087-1088, 1094-1095 (Howard); People v. Harris (1990) 226 Cal.App.3d 141, 147; People v. Latham (1988) 206 Cal.App.3d 27, 29.) A denial or grant of probation generally rests within the broad discretion of the trial court. (People v. Downey (2000) 82 Cal.App.4th 899, 909.)

Section 1203.3 does not apply after a probationer is rearrested on a probation violation. ( 1203.2, 1203.3, subd. (e); see also Howard, supra, 16 Cal.4th at p. 1094.) Instead, when a probationer is rearrested, the governing statute is section 1203.2, which compels a court upon termination of probation to order into effect the sentence previously imposed but suspended. ( 1203.2, subd. (c).) (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1425; see also Howard, supra, 16 Cal.4th at p. 1094 [the provision [section 1203.3] by its terms does not apply to probation revocations following rearrests, which section 1203.2, subdivision (c), covers, italics omitted]; In re Walden (1949) 92 Cal.App.2d 861, 864-865 [section 1203.3 does not apply when the probationer is rearrested]; People v. Williams (1944) 24 Cal.2d 848, 852-853 [section 1203.3 concerns the discharge of a defendant who has satisfied all conditions of probation].)

Judge Lippitt Correctly Ordered into Execution the Four-Year Sentence

Appellant violated his probation in April 2006, and was placed in custody pursuant to a warrant for his arrest. As a result, section 1203.3 did not apply in appellants case. The court simply did not have the power to reduce the previously imposed but suspended sentence. Instead, the court was empowered to (1) reinstate probation on the same terms, (2) reinstate probation on modified terms, or (3) terminate probation, revoke the suspension of execution of sentence, and commit the defendant to prison on the original sentence. As will be explained more fully below, the record in this case shows that on July 3, 2007, Judge Taylor chose the first option he reinstated probation on the same terms.

The cases cited by appellant do not support his contention that Judge Taylor had the authority to reduce petitioners previously imposed sentence after he was placed in custody pursuant to a warrant issued as a result of his probation violation. The defendant in Howard claimed the trial court had discretionary authority upon revoking her probation to reduce the previously imposed but suspended term of imprisonment. (Howard, supra, 16 Cal.4th at p. 1086.) The Supreme Court rejected this claim, holding that when the court actually imposes sentence but suspends its execution, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitment stage [citation], to reduce the imposed sentence once it revokes probation. (Id. at p. 1084, italics omitted.) Nowhere does Howard suggest a court may reduce a probationers sentence once he has been placed in custody pursuant to a warrant issued as a result of a probation violation.

Likewise, People v. Karaman (1992) 4 Cal.4th 335 does not help appellants argument.That case presented the question whether a trial judge retains jurisdiction to modify a defendants sentence during a brief time period that intervenes, due to a stay of execution, between the entry of the sentence in the minutes and the actual start of the defendants prison term. Karaman held that the trial court retains sentencing jurisdiction during that period, because the execution of the sentence does not occur until the defendant is remanded into custody to begin serving his term. (Id. at pp. 344-345.) Not only was there no similar brief stay of execution in this case, but our Supreme Court has specifically held that Karamans narrow holding does not extend to probation revocation situations, like this one. (Howard, supra, 16 Cal.4th at p. 1092.)

Even assuming section 1203.3 could be applied in this case, we disagree with appellant that Judge Taylor modified the originally imposed and suspended four-year sentence. Judge Taylor never gave any indication, either at the January or July 2007 hearings, that he intended to vacate and modify the suspended sentence. No party argued for or sought such a modification. The court never gave to the People (or the probation officer) either written notice that the sentence was going to be reduced or an opportunity to be heard on the issue. The court did not even hold a hearing at which the subject was discussed or argued. All of these steps are required by section 1203.3, subdivision (b)(1).

Judge Taylors statements on July 3, 2007, show that he intended to reinstate probation under the same terms and conditions, not reduce the previously suspended sentence. We conclude that when Judge Taylor stated that [t]here was an indicated of two years on this case, he was referring to the originally imposed but suspended four-year sentence, which included the midterm of two years for the theft plus an additional two years for the prior prison enhancements. Judge Taylor simply did not mention the prior prison enhancements. Thus, when he said he was going to change an indicated, something he did not do often, Judge Taylor was stating that he intended to give appellant another chance and reinstate probation rather than terminate it and impose the original sentence.

Construing Judge Taylors statements in any other way ignores the fundamental fact that the January and July 2007 hearings were prompted by appellants violation of probation, which resulted in Judge Taylor revoking probation and issuing a bench warrant for appellants arrest. There is no logical reason why assuming he had the power to do so Judge Taylor would reward appellant for his violation of probation by reducing the sentence from four years to two years. Rather, the record shows Judge Taylor graciously gave appellant another chance at probation on the same terms.

Accordingly, Judge Lippitt did not err in July 2008 when she terminated appellants probation and imposed the four-year prison sentence due to his continued violation of probation.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOHR, J.*

WE CONCUR:

RUBIN, Acting P.J. FLIER, J.

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^[1] All code references are to the Penal Code.

[2] Section 1203.3 provides, in relevant part: (a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. . . . [] (b) The exercise of the courts authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following: [] (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter . . . . [] (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. [] . . . [] (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order. [] . . . [] (e)  This section does not apply to cases covered by Section 1203.2.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.