P. v. Pickens

Filed 12/22/09 P. v. Pickens 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Affirmed.

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant Ronnie Pickens appeals from the order terminating his probation and imposing a previously suspended 15-year prison sentence. He contends statements made by the trial court presiding over the probation revocation hearing indicate it prejudged the case, thus denying him due process. We affirm.

PROCEDURAL BACKGROUND

Because the sole issue on appeal involves a procedural matter, it is not necessary to recite the facts of the underlying crime. It is sufficient to state that in November 2005 defendant was charged with first degree burglary; various prior convictions were alleged pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivision (b) through (i) (the Three Strikes Law), as well as sections 667, subdivision (a)(1) and 667.5 subdivision (b).[1]

After a number of continuances, some of which were related to defendants heart surgery, both sides announced ready for trial on June 26, 2006. That day, the trial court told defendant that, in exchange for defendant pleading guilty to the burglary and admitting all of the alleged priors, the trial court would strike the Three Strikes priors and sentence him to five years felony probation. The trial court explained: [A]fter considering the defendants record and his medical history and hes got about everything wrong with him you can have and still be alive, except for cancer I am willing to give him a probationary sentence provided that I suspend 15 years state prison over his head, which means if he violates, hes going away for 15 years. [] Now, I note this will be over the Peoples objection. They want a state prison sentence immediately, but Im willing to do it. After defendant indicated his willingness to agree to the bargain, the following colloquy ensued: THE COURT: . . . [S]hould you violate your probation, even if it is a relatively minor violation, even if you pick up a misdemeanor petty theft, theyre going to be asking for state prison, and Im going to be hard-pressed to deny them that. [] THE COURT: In other words, if you mess up, youre going to the joint. Thats no ifs and no ands and no buts, and its going to be for 15 years. Okay? [] THE DEFENDANT: Yes, sir. [] THE COURT: I want to make sure its clear because [the court clerk] is going to write in her file that Ive warned you that any violation, no matter how minor, is going to result in state prison -- [] THE DEFENDANT: Yes, sir. [] THE COURT: -- and youre not going to get another chance. Defendant agreed to the bargain and the matter was continued for sentencing.

On July 13, 2006, the trial court sentenced defendant to the agreed upon 15-year sentence, suspended execution of that sentence and placed defendant on probation.[2]

Less than a year later, on March 20, 2007, defendant was arrested for violation of section 243.4, subdivision (a) (sexual battery, punishable by two, three or four years). On August 6, 2008, at a probation revocation hearing in his original case, defendant requested that his appointed counsel be removed. During the Marsden hearing that followed, the trial court explained to defendant: You have 15 years joint suspended,[[3]] and the way the law is set up, and Im bound by the law, they will do a probation violation hearing in a moment. They have their witnesses here. If they prove by a preponderance of the evidence which is much less than proof beyond a reasonable doubt if they prove by a preponderance of the evidence that you committed even a misdemeanor-type crime and I agree with them, and if I violate probation and decide to sentence you to state prison, I have no option but to sentence you to 15 years. [] I do have the option of violating probation and giving you county jail time. I can opt to modify your probation by adding county jail time instead of state prison time. I do have that discretion. I would not exercise that discretion in this case due to your lengthy, lengthy criminal history. (Italics added.) The trial court observed that the prosecutor had offered defendant the low term doubled on the sexual battery charge (four years) and would be willing to have me just terminate probation on your joint suspended case, which means the potential of 15 years suddenly goes away. You get two years and then you get out. . . .  [If the prosecutor is willing to offer that], that is something you should think carefully about because you are on the verge possibly of serving 15 years.

Back in open court after denying defendants Marsden motion, the trial court reiterated that the standard of proof at a probation revocation hearing was not beyond a reasonable doubt, but the lower preponderance of the evidence standard. If they prove that up, they also recognize that my hands are tied and if I decide to sentence you to state prison, it must be 15 years. Noting that the prosecutor had offered defendant something less than 15 years, the trial court reiterated its prior advice to defendant to think very carefully about your options because they have their witnesses here and once we start that hearing, my guess is all offers are off and you are going to be facing 15 years. After defendant said he wanted a hearing, the trial court reiterated: You understand that once you opt for that, that the 15 years is hanging over your head? Defendant elected to proceed with the probation revocation hearing.

The trial court found defendant in violation, denied probation due to the seriousness of defendants prior convictions and imposed the suspended 15-year sentence.

Defendant filed a timely notice of appeal.

DISCUSSION

A.                 Defendant Did Not Forfeit the Issue by Failing to Object

Relying on People v. Geier (2007) 41 Cal.4th 555 (Geier), the People argue defendant has forfeited the issue of whether the trial courts improperly decided on a sentence before it heard the evidence at the probation revocation hearing because defendant did not object to the trial courts comments. We disagree.

In Geier, the issue was whether the trial court several poorly conceived attempts at humor during the guilt phase of a capital offense jury trial amounted to judicial misconduct. The defendant argued that the claim could be raised on appeal without an objection at trial, because it involved the due administration of justice. (Geier, supra, 41 Cal.4th at p. 613.) The defendant in Geier relied on Catchpole v. Brannon (1995) 36 Cal.App.4th 237, in which the court held that the failure of a plaintiff in a sexual harassment trial to object did not forfeit her claim that the trial courts comments showed bias. The appellate court in Catchpole had concluded that, since the comments displayed clear gender bias, application of forfeiture principals would have the unjust effect of insulating judges from accountability for bias. (Id. at p. 244.) In contrast, the Supreme Court in Geier found the defendants failure to object to the trial judges flip comments when they were made constituted a forfeiture of the issue. (Geier, supra, at p. 613.) It reasoned that the alleged misconduct did not involve the kind of invidious bias by the trial court involved in Catchpole.[4] (Geier, at p. 613.)

Here defendants contention is that the trial court prejudged his case before hearing the evidence. Prejuding a matter raises due process concerns of a more serious nature than the unfortunate comments in Geier. If true, itwould adversely affect the due administration of justice. Accordingly, we will address the point. (Geier, supra, 41 Cal.4th at p. 613.)

B. The Trial Court Did Not Prejudge the Case

Defendant contends the trial court improperly prejudged the case in violation of his right to due process. As we understand his argument, it focuses primarily on the trial courts statement, I would not exercise that discretion [to reinstate probation] in this case due to your lengthy, lengthy criminal history. Defendant argues the remark shows the trial court had prejudged the outcome if a probation violation were shown. Defendant does not argue that the trial court prejudged whether defendant had committed the charged violation, only the appropriate disposition if the court found defendant in violation. We find no error.

We start our analysis with a brief review of the probation violation process and point out that in this case the trial courts dispositional options were limited. The decision to revoke probation involves a two-step inquiry: first, a determination of whether the defendant violated a condition of probation; and second, a discretionary determination of whether the violation warrants revocation. (Black v. Romano (1985) 471 U.S. 606, 611.) Due process requires a hearing at which the defendant has an opportunity to present evidence and to show that revocation is not appropriate. (Id. at p. 612.) Although the trial courts role in a revocation proceeding is to determine whether probationer should be allowed to continue to retain his liberty, the hearing arises as a continuing consequence of the probationers original conviction; any sanction imposed at the hearing follows from that crime, not from the substance of new criminal allegations against the probationer. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.)

The Penal Code distinguishes between probation grants following two types of sentencing orders: (1) suspended imposition of sentence and (2) suspended execution of sentence. ( 1203, subd. (a), 1203.1, subd. (a), 1203.2, subd. (c); People v. Howard (1997) 16 Cal.4th 1081, 1094; Cal. Rules of Court, rule 435(b).)[5] In the first instance, if probation is revoked, the trial court has all the sentencing options that it had before placing the defendant on probation. But if sentenced has been imposed and only execution suspended, the judge must order that the judgment previously pronounced be in full force and effect . . . . (Cal. Rules of Court, rule 4.435(b)(2).) It was in this second environment that the trial court was operating when it revoked defendants probation: a 15-year sentence had been imposed but its execution was suspended. Thus the trial court, if it were to sentence defendant (as opposed to reinstate probation), was required to the order [the 15-year] sentence into effect . . . . (Howard, supra, at p. 1088.)

Although the trial courts choice of state prison terms was limited after probation was violated, the trial court retained some discretion: it could have reinstated probation on the same or different terms (including time in county jail) or it could have put into effect the previously suspended 15-year state prison sentence. It chose the latter. We turn now to defendants claim of error. His argument is essentially twofold: the trial court determined in advance of the hearing that if defendant were to be found in violation it would impose the 15-year sentence and in so doing the court failed to exercise its discretion after defendant was found in violation. A ruling otherwise within the trial courts power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. (People v Penoli (1996) 46 Cal.App.4th 298, 302 (Penoli).) We find the record does not demonstrate either that the trial court prejudged the case or that it failed to exercise discretion.

We agree that the one statement from the record italicized, ante, might suggest the concerns which defendant raises. The totality of the record, however, reveals just the opposite. The trial court on several occasions both in 2006 and 2007, and in several different ways, said that if it found defendant in violation and chose not to reinstate probation, the court had no choice but to impose the suspended 15 years. This was an accurate statement of the law. The fact that a few words taken out of context might have implied the court had foreclosed reinstating probation does not detract from the simple reality: the trial court was telling defendant directly and sternly of the possible consequence of his decision not to accept a plea in the newly filed sexual battery case and to insist on a probation violation hearing. Defendant had a lengthy record with many prior convictions. He was given nothing short of a break by the trial court when it originally granted probation. He was not a likely candidate for reinstatement of probation if he were found in violation based on the new and serious sexual battery charges. The court correctly informed defendant that if he were to be sentenced to state prison it would be for 15 years, nothing less, nothing more. Far from prejudging or failing to exercise discretion, the trial court acted commendably by giving defendant the straight and narrow about the risks he was facing.

Defendant relies on Penoli, supra, 46 Cal.App.4th at page 302 in support of his argument. We do not find that case helpful to defendant. In Penoli, as a condition of probation, the trial court required the defendant to waive the statutory entitlement to credit for time spent in a residential treatment facility, explaining:  it will be an unusual case that I won't require a waiver of time credits for time served while in the program as a standard practice in court until there is specific case law that says having that as a standard practice is an excess of jurisdiction or an abuse of discretion.  (Penoli, supra, at p. 303, italics omitted.) The appellate court reversed, reasoning that [t]he trial courts standard practice represents not a case-specific application of sentencing discretion, but a preconceived determination applicable to all cases in which the question might arise. Adherence to this practice constituted an erroneous failure to exercise the discretion vested in the court by law. [Citations.] (Ibid.) In contrast to Penoli, the trial court here did not announce that it was adhering to a standard practice of denying probation under certain situations. Rather, the courts comments reflected a case-specific decision, based on defendants case alone.

DISPOSITION

The order is affirmed.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J. MOHR, J.*

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[1] All undesignated statutory references are to the Penal Code.

[2] The 15-year term was comprised of six years for burglary plus five years pursuant to section 667, subdivision (a), plus four years pursuant to section 667.5, subdivision (b). Two section 667.5, subdivision (b) priors and the Three Strikes priors were stricken.

[3] The phrase joint suspended refers to a suspended prison term.

[4] The court in Geier went on to also reject the contention on its merits, finding the comments innocuous. (Id. at p. 614.)

[5] All rule references are to the California Rules of Court.

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