P. v. Wilkinson

















Filed 5/8/13 P. v. Wilkinson CA3











NOT TO BE PUBLISHED



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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Butte)

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>

THE PEOPLE, Plaintiff and Respondent, v. TODD MARTIN WILKINSON, Defendant and Appellant.

C071925 (Super. Ct. No. CM35166)

Counsel for defendant Todd Martin Wilkinson
has filed an opening brief that sets
forth the facts of the case and asks this court to review the record and
determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436.)
Defendant filed a supplemental
brief raising the following issues:
(1) the record is not clear as to whether the trial court suspended
imposition of sentence so as to retain sentencing discretion upon violation of
probation; (2) the People and the trial court breached the href="http://www.fearnotlaw.com/">plea agreement; and (3) he is entitled to
additional conduct credits. We address
these issues, in addition to undertaking a review of the record as required by >Wende, and affirm.

We provide
the following brief description of the facts and procedural history of the
case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

BACKGROUND

As a result
of defendant’s 1997 conviction for rape, he is required to register as a sex
offender pursuant to Penal Code section 290.
On September 13, 2011,
a police officer saw defendant and, knowing of his registration requirement,
asked a detective to verify that defendant’s registration was current and
valid. Defendant had last registered in
June 2011. The detective went to the
last address defendant had provided and spoke to the resident. The resident informed the detective that he
knew defendant but that defendant did not reside at the residence.

Defendant
was located and arrested on September
22, 2011. Defendant told the
arresting officer that the resident of the address he provided had told him he
could use the address for his registration requirement. He admitted he did not have any property at
the residence, nor did he sleep or eat at the residence. He claimed he occasionally sneaked onto the property and slept in the barn out
back.

Defendant
was charged with failure to register.
(Pen. Code, § 290.015, subd. (a).)
It was also alleged he has served two prior prison terms (Pen. Code, §
667.5, subd. (b)), and has a prior strike conviction for a 1997 rape (Pen.
Code, § 1170.12).

On December 8, 2011, defendant pled no
contest to failing to register and admitted the prior prison term
allegations. He entered the plea with
the understanding that the remainder of the charges and another separate case
would be dismissed, no charges would be pursued on a pending police report, and
he would receive five years’ probation at the outset.

On January 5, 2012, the trial court
sentenced defendant to the upper term of three years for failing to register
and two consecutive one year terms for the prior prison term enhancements, for
an aggregate term of five years in state
prison. The trial court then
suspended execution of the sentence and placed defendant on probation for a period
of five years. It also imposed various
fines and fees and calculated presentence custody credit. Defendant’s appeal of that judgment is this
court’s case No. C070180.

One of the
terms of defendant’s probation was that he complete a one-year, minimum, href="http://www.fearnotlaw.com/">residential substance abuse treatment program
and report to probation as directed. On January 20, 2012, a petition was
filed alleging defendant had violated probation by terminating his
participation in his residential substance abuse treatment program and failing
to report to probation as directed.

On February 16, 2012, defendant admitted
terminating his participation in his residential substance abuse treatment
program. The trial court subsequently denied
defendant’s motion to withdraw his
admission and for “specific enforcement of plea bargain and sentence.”

On June 28, 2012, the trial court denied
reinstatement of probation. Recognizing
defendant’s disagreement that there had been a previous agreement to the upper
term, the trial court found independently that the upper term was appropriate
and ordered defendant serve the previously imposed five-year prison
sentence. The trial court affirmed the
fines and fees and awarded defendant 255 actual days and 126 conduct days, for
a total of 381 days of presentence custody
credit.

Defendant
appeals. The trial court granted
defendant’s request for a certificate of
probable cause. (Pen. Code,
§ 1237.5.)

DISCUSSION

I

>Suspension Of Imposition Of Sentence

Defendant
contends the record is unclear that the trial court suspended execution of
sentence and suggests the court, instead, suspended imposition of sentence,
thereby retaining discretion to sentence him to less than five years upon his
violation of probation. He is
wrong. The record is quite clear that,
upon entry of defendant’s plea to the underlying offenses, the trial court
chose to impose sentence and then suspend execution of that sentence, placing
defendant on probation. (Pen. Code,
§ 1203.1.)

The trial
court commenced the sentencing hearing with the following statement: “[A]s I understand it, Counsel, at the time
of the plea there was an indication that the defendant would be stipulating to
the maximum term; to wit 5 years. That’s
3 years for the underlying offense plus 2 additional years for each of the
prior prison terms, and then the Court had indicated suspending execution and
granting a 5 year grant of probation.
[¶] Is that everyone’s
understanding?” Both attorneys and
defendant answered affirmatively. The
trial court then orally imposed the indicated sentence, including the stated
prison time, fines, fees and additional requirements such as saliva samples and
registration requirements. When the
prosecutor asked about probation conditions, the trial court responded, “Well,
first I’m doing the prison sentence, and then I’m going to suspend execution of
it.”

The trial
court finished imposing sentence, to wit, awarding custody credits and advising
defendant of his right to appeal, and then stated, “[t]he Court will suspend
execution of the state prison sentence and proceed with a probation grant. Before I do so, Counsel, would you like to be
heard as to any specific terms and conditions?”
After argument regarding probation conditions, the trial court proceeded
to find the case to be unusual pursuant to Penal Code section 1203, subdivision
(e)(4), and held “Therefore, defendant’s application for probation is granted
for the following reasons: His
willingness to comply with the terms and conditions of probation. Imposition of sentence is suspended.” The trial court then proceeded to set forth
the terms of probation.

Defendant
argues this last statement by the trial court indicates that imposition, not
execution, of sentence was suspended. It
does not. Whether the trial court
misspoke or the court reporter made a clerical error, the record on a whole is
quite clear that execution of
sentence was suspended, as reflected by the trial court’s other statements, the
actual pronouncement of the prison sentence, and the clerk’s minute order. (See People
v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423 [When clerk’s
transcript conflicts with reporter’s transcript, question of which controls
determined by consideration of circumstances of case].) Thus, upon subsequent revocation and
termination of defendant’s probation, the previously ordered judgment and
sentence came into full force and effect.
(Pen. Code, § 1203.2, subd. (c); Cal. Rules of Court, rule
4.435(b)(2).) The trial court had no
authority to reduce the previously ordered sentence at the time it revoked and
terminated probation (People v. Howard
(1997) 16 Cal.4th 1081, 1095) and defendant may not now raise issues
relating to the accepted sentence on an appeal from the subsequent order
revoking and terminating probation (id.
at p. 1095).

II

>Breach Of Plea Agreement

Defendant
also argues that both the People and the trial court breached the plea
agreement by “adding” the stipulated term of five years to the agreement after
he had entered his no contest plea and admissions. This claim is untimely since it had to be
raised by appeal from the order of January
5, 2012, granting defendant probation. (People
v. Senior (1995) 33 Cal.App.4th 531, 533 [“[W]hen a criminal defendant
could have raised an issue in a previous appeal but did not do so, the
defendant may be deemed to have waived the right to raise the issue in a
subsequent appeal, absent a showing of good cause or justification for the
delay”].) This rule is applied where, as
in this case, “(1) the issue was ripe for decision by the appellate court at the
time of the previous appeal; (2) there has been no significant change in the
underlying facts or applicable law; and (3) the defendant has offered no
reasonable justification for the delay.”
(Id. at p. 538.) Defendant did not make his challenge by
timely appeal after the sentence was imposed but, instead, commenced the
probationary period, reflecting his acceptance of the sentence. (See People
v. Howard, supra, 16 Cal.4th
at p. 1084.) Thus, the issue is not
cognizable in this appeal.

In any
event, we note that, although the five year stipulated term was first clarified
on the record after defendant entered his no contest plea and admissions, both
defendant and his attorney expressly agreed that it was their understanding
that there was an upper-term (five year) state prison stipulation if there was
a violation of probation.

III

>Presentence Credits

Finally,
defendant contends he is entitled to 255 days of presentence conduct credit
because his credit should not be limited due to the dismissed prior
strike.

Defendant
was sentenced after violation of probation on June 28, 2012, for an offense
that occurred in September 2011. Under
the law in effect at the time, a defendant was generally entitled to one day of
conduct credit for every day of presentence custody credit. (Former Pen. Code, § 2933; Stats. 2010,
ch. 426, § 1.) A defendant who has
a prior serious felony conviction is not subject to this provision (former Pen.
Code, § 2933, subd. (e)(3); Stats. 2010, ch. 426, § 1), but is
instead awarded conduct credit consisting of two days credit for every four
days of presentence custody (former Pen. Code, § 4019; Stats. 2011, ch.
39, § 53).

The trial
court awarded custody credits under section 4019 based on defendant’s prior
conviction for rape, a serious and violent felony. (Pen. Code, §§ 1192.7,
subd. (c)(3), 667.5, subd. (c)(3).)
Defendant claims the denial of day-for-day conduct credits increases the
time he will spend in prison and is therefore an increase in his punishment. Since the strike allegation containing the
rape conviction was dismissed, defendant contends that this prior conviction
cannot be used to limit his conduct credits.

The
California Supreme Court has held that a prior conviction does not have to be
formally pled and proved in order to limit a defendant’s conduct credits. (People
v. Lara (2012) 54 Cal.4th 896, 907.)
Due process gives defendant the right to “sufficient notice of the facts
that restrict his ability to earn credits and, if he does not admit them, a
reasonable opportunity to prepare and present a defense. [Citations.]”
(Id. at p. 906.)

In >Lara, the People alleged a prior serious
felony conviction in the pleadings, but dismissed the allegation as part of the
plea agreement. (People v. Lara, supra,
54 Cal.4th at p. 900.) The
serious felony allegation in the pleadings, when coupled with a reference to
the conviction in the probation report, provide sufficient notice and proof to
satisfy the defendant’s due process rights.
(Id. at p. 907.)

Here, the
People alleged the prior serious felony conviction in the pleadings, defendant
executed a Harveyhref="#_ftn1" name="_ftnref1" title="">[1]
waiver allowing the use of dismissed priors at sentencing, and the probation
report referenced the dismissed prior conviction as limiting his conduct
credits. Applying Lara, we reject defendant’s claim.

IV

>Review Of Entire Record

Having also
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

DISPOSITION

The trial
court’s orders revoking defendant’s probation
and committing defendant to prison are affirmed.







ROBIE , Acting P. J.



We concur:







BUTZ , J.







HOCH , J.