P. v. Wills

 

 

 

 

 

 

 

 

 

 

Filed 9/10/13  P. v. Wills CA4/3

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
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THE PEOPLE,         Plaintiff and Respondent,               v.   LAURA D. WILLS,         Defendant and Appellant.

G047265            (Super. Ct. No. 06NF2921)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William Lee Evans, Judge.  (Retired judge of the Orange Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed.

                        Arielle N. Bases, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Laura A. Glennon, Deputy
Attorneys General, for Plaintiff and Respondent.

 

                        Laura D. Wills appeals
from the eight-year prison sentence executed following a probation
violation.  She contends the trial court
misunderstood its discretion to make a downward modification to a previously
imposed but suspended sentence.  She also
asserts her attorney provided ineffective assistance of counsel by acting under
the same misapprehension as the trial court.

                        We conclude Wills and
the district attorney entered into a negotiated plea agreement and, at the time
of the guilty plea, the trial court actually imposed and suspended execution of
an eight-year term.  Thus, at the
probation violation hearing, the trial court correctly understood it had two
choices, either reinstate probation or execute the previously imposed sentence.
 Consequently, we affirm the
judgment. 

 

FACTS

 

                        In January 2007, the
district attorney filed a 16-count information charging Wills with four counts
of grand theft (counts 1-5, 7, 9, 14-15), four counts of forgery (counts 6, 8,
12), making a false financial statement (count 11), identity theft (count 13),
and perjury (count 16) in the loss of over $100,000.

                        In July 2008, Wills
pleaded guilty to all charges pursuant to an agreement between the parties
which the trial court referred to as a settlement.  At that time the trial court stated, “So it
does appear that the agreement that’s been reached between the district
attorney and the defense attorney [has] taken into due consideration the
extensive outlining crime which Ms. Wills committed as well as her current
situation as an individual and I think it blends together a sufficient
consideration of that.  [¶] The bottom
line here is the recommendation of the court is to impose a state prison
judgment and stay the execution of that judgment for a ten year period of time
provided Ms. Wills’ conduct complies with certain terms and
conditions . . . . 
[¶] Anytime she chooses to violate the conditions of her probation she
can be immediately taken into custody and she’ll serve the eight year sentence,
which is a greater sentence [than] she might otherwise serve were this thing to
proceed to trial.”

                        In August 2009, the
court revoked probation and issued a warrant for Wills’s arrest for an alleged
probation violation.  She was ultimately
arrested on the warrant in December 2011 and, after several continuances, the
matter proceeded to a contested probation violation hearing.  At the hearing, the probation officer
testified to the facts and circumstances surrounding the alleged probation
violation.

                        On the basis of this
testimony, the trial court found Wills in violation of her probation.  The trial judge concluded he had limited
sentencing options in light of the previously imposed eight-year term.  Being not “inclined” to grant probation, the
court ordered execution of the previously imposed sentence.  This appeal followed.

 

DISCUSSION

 

                        Wills argues the trial
court erroneously believed her plea agreement included the suspended execution
of an eight-year prison term, when in reality the plea agreement called for the
suspended imposition of up to an eight-year prison term.  She asserts the district attorney only wanted
to ensure a lengthy probation period so Wills could pay restitution.  Wills also contends the trial court had the
authority to recall the previously imposed sentence at the probation violation
hearing and then resentence her to a new, lesser term “so long as the order to
reduce the sentence occur[ed] after the probation violation hearing and within
the 120 days prescribed by [Pen. Code, § 1170, subd. (d)].”href="#_ftn1" name="_ftnref1" title="">[1]  Finally, she claims her attorney provided
ineffective assistance of counsel by failing to tell the court about its
sentencing options, and the combined errors of the prosecutor, defense counsel,
and the court deprived her of the constitutional right to due process of
law.  We disagree.

                        There is a dispute as to
whether the imposition and suspension of an eight-year sentence was an integral
component in the plea agreement.  Wills
points to page 2 of the plea form which says any probation violation could result
in a “maximum” prison sentence of eight years. 
On the other hand, the Attorney General points to page 5 of the plea
form, which states the court was to impose the eight-year term but suspend
execution of that sentence and grant her probation for a period of 10 years.

                        We need not decide
whether the eight-year term was an integral part of the plea agreement, or
simply a term selected by the court.  The
crucial fact is that at the time of the guilty plea the trial court actually
sentenced Wills to an eight-year term and suspended execution of that
sentence.  If that was not what Wills had
agreed to, the time to complain was then, not for the first time on appeal some
four plus years later. 

                        In short, the resolution
of this case comes down to the difference between orders suspending the
imposition of sentence altogether and orders suspending the execution of an
imposed sentence.  (People v. Howard (1997) 16 Cal.4th 1081, 1087 (>Howard).)  “Unlike the situation in which sentencing
itself has been deferred, where a sentence has actually been imposed but its
execution suspended, ‘The revocation of the suspension of execution of the
judgment brings the former judgment into full force and
effect . . . .’ 
[Citations.]”  (>Ibid.) 
Thus, the Howard court held
that when the trial court suspends execution of an imposed sentence and grants
probation, finding the probationer in violation of probation limits the court’s
sentencing discretion to ordering the exact sentence previously imposed or
reinstating probation.  (>Id. at p. 1088.) 

                        Wills suggests the court
could have utilized section 1170, subdivision (d) to circumvent the result
dictated by Howard.  That section does permit the trial court to
recall and resentence a defendant “within 120 days of the date of commitment on
its own motion . . . .” 
(Ibid.)  But in the case of revocation and termination
of probation section 1203.2, subdivision (c)href="#_ftn2" name="_ftnref2" title="">[2] trumps section
1170, subdivision (d).  (>Howard, supra, 16 Cal.4th at p.
1093.)  “In the probation revocation
area . . . if 
probation is revoked, ‘the [previous] judgment shall be in full force
and effect.’”  (Ibid.)  While the trial court
is not precluded from using section 1170, subdivision (d) in such cases, it
must “wait until actual commitment” before exercising this option.  (Howard,
supra, 16 Cal.4th at
p. 1094.)  Here, the trial court did
not recall Wills’s sentence within 120 days, and we reject her unsupported
assertion the court was unaware of this option at the post-revocation
sentencing hearing.

                        Having found the trial
court committed no sentencing error, it is axiomatic Wills’s attorney provided
adequate representation.  Neither the
trial court, nor her counsel or the district attorney deprived Wills of her
constitutional right to due process of
law.

 

 

 

 

 

 

 

 

 

 

 

DISPOSITION

 

                        The
judgment is affirmed.

 

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

 

ARONSON,
ACTING P. J.

 

 

 

IKOLA, J.