P. v. Yang

Filed 1/12/09 P. v. Yang CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Bird, Commissioner.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Pheng Yang challenges the trial courts decision to deny his request for probation, on the sole ground that the court misunderstood the scope of its discretion to grant probation. Specifically, he contends the trial court believed it could not place him on probation unless it found he did not pose a threat to the victim. He requests a remand for resentencing.

The Attorney General contends the trial court understood its discretionary power under Penal Code section 1203.067^[1]and properly exercised that discretion in sentencing appellant to state prison.

We conclude the reporters transcript of the sentencing hearing demonstrates that the trial court incorrectly believed that it could not grant probation unless it found appellant did not pose a threat to the victim. Accordingly, we remand for resentencing.

STATEMENT OF THE CASE

On July 5, 2007, the district attorney filed a criminal complaint in the Fresno Superior Court charging appellant with unlawful sexual intercourse with his spouse, Jane Doe, by means of force ( 262, subd. (a)(1); count 1) and sodomy of Jane Doe by means of force ( 286, subd. (c)(2)).

On August 9, 2007, appellant agreed to plead no contest to the spousal rape count in exchange for the possibility of probation, a sentence with a mitigated lid of three years in state prison, and the dismissal of count 2. The court referred the matter to probation for a presentence report and ordered a doctor be appointed to evaluate appellant pursuant to section 288.1.

On September 10, 2007, the court appointed Dr. Harold Seymour to conduct an examination of appellant pursuant to section 288.1.

On October 30, 2007, the court held a sentencing hearing. The court read and considered the report of the probation officer. The court read, considered, and received into evidence the report of Dr. Seymour.

The victim did not attend the sentencing hearing. The victim advocate informed the court that the victim was uncertain about whether she wanted to be at the hearing, that she was aware of the hearing, and that it was her wish that the court decide the appropriate sentence. In response, the trial court stated: I guess before [the] Court can decide whether probation or prison is an appropriate sentence, the Court needs to hear some information from her about whether or not she thinks [appellant] poses a threat to her if hes placed on probation. The court and counsel then had a discussion off the record. The court stated the following:

Weve had extensive conversations at the bench about this case. The Court is required, before the Court can place [appellant] on probation for this type of offense, to conduct a hearing under section 1203[.]067. And before [appellant] or anyone can be placed on probation for this offense, the Court has to make a determination as to whether or not a grant of probation would pose a threat to the victim. And based on the information thats currently before the Court, I cant make that determination today and so Im not comfortable imposing sentence today when the choice is either probation or a commitment to the Department of Corrections until I have some additional information to assist the Court in making this determination. I dont believe I could justify placing [appellant] on probation.

So Ive told the attorneys that Id be inclined to postpone the matter for a week or two and allow the attorneys or victim services or the victim or anyone at all who wants to present information to the Court related to this issue and give them the opportunity to do so.

The matter was rescheduled. On the rescheduled date, defense counsel made an oral motion for a continuance. The trial court granted the motion and set another hearing for two weeks later.

On November 27, 2007, counsel for appellant requested the court to proceed with sentencing and grant probation. The deputy district attorney requested the appellant be sentenced to state prison. The trial court denied probation and imposed the mitigated term of three years in prison. The trial courts oral statement of reasons for its decision is set forth in part II.B, post.

FACTS

The sole issue on appeal is whether the trial court correctly understood the scope of its discretion to grant probation. Because the only facts relevant to that issue are the statements of the trial court that reflect its view of its authority to grant probation, we need not set forth the facts that provided a basis for the charges filed against appellant.

DISCUSSION

I. Discretion to Grant Probation

All criminal defendants are eligible for probation in the discretion of the sentencing court, unless a statute provides otherwise. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247; see Cal. Rules of Court, rule 4.414 [list of criteria affecting the decision to grant or deny probation].)^[2] In this case, the only statutory provision applicable to appellants request for probation contains certain procedural requirements. Specifically, section 1203.067 provides in relevant part:

(a) Notwithstanding any other law, before probation may be granted to any person convicted of a felony specified in Section 262 who is eligible for probation, the court shall do all of the following:

(1) Order the defendant evaluated pursuant to Section 1203.03, or similar evaluation by the county probation department.

(2) Conduct a hearing at the time of sentencing to determine if probation of the defendant would pose a threat to the victim. The victim shall be notified of the hearing by the prosecuting attorney and given an opportunity to address the court.

(3) Order any psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the threat to the victim and the defendants potential for positive response to treatment in making his or her report to the court. Nothing in this section shall be construed to require the court to order an examination of the victim.

Based on these statutory provisions and the general rule concerning a sentencing courts discretion to grant probation, a court considering a probation request of a defendant convicted of a felony listed in section 1203.067 must undertake the following analysis.

First, the court reviews the criteria affecting the grant or denial of probation set forth in rule 4.414. Second, the court weighs those criteria and makes a discretionary determination either to (1) deny probation or (2) consider further the possibility of granting probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1532 [a diagnostic evaluation under  1203.067 is not necessary where the court has decided to deny probation based on the criteria in rule 4.414].) Third, assuming the court decides to consider further the possibility of probation, it orders the evaluation and conducts the hearing required by section 1203.067, subdivision (a). Fourth, the court considers the results of the evaluation and other evidence presented at the hearing, makes the required determination, and exercises its discretion whether to grant probation.

The language of section 1203.067 clearly states that a court cannot grant probation for the listed felony without holding a hearing and determining if probation of the defendant would pose a threat to the victim. ( 1203.067, subd. (a)(2).)^[3] The statute, however, does not address the impact of that determination. For example, it does not direct the sentencing court to deny probation if it determines that a defendant on probation would pose a threat to the victim. (See Code Civ. Proc.,  1858 [when construing a statute, judges may not insert what the Legislature has omitted].)^[4] In other words, if the sentencing court determines there is some possibility of danger to the victim if probation is granted, that possibility (which might be small) does not eliminate the courts discretionary authority to grant probation.

Therefore, based on the absence of an express statutory restriction, we conclude that the trial court retains the discretionary power to grant probation to a defendant even after it determines pursuant to section 1203.067, subdivision (a)(2) that a defendant poses a possibility of danger to the victim.

II. Establishing an Abuse of Discretion

A. General Principles

The following rule of appellate review is settled: An order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.] These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. [Citations.] (People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.)

Under these principles, a defendant has the burden of showing that the sentencing court abused its discretion. In this case, appellant seeks to carry that burden by demonstrating that the sentencing court misunderstood the scope of its discretion.

An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion. [Citation.] (People v. Bruce G., supra, 97 Cal.App.4th at p. 1247.) Thus, where a trial court denies probation without an accurate understanding of its discretion to grant probation, remand for resentencing is appropriate. (Id. at p. 1248; see People v. Fuhrman (1997) 16 Cal.4th 930, 944.)

B. Analysis

In this appeal, the sole question presented is whether the trial court misunderstood the scope of its discretion to grant probation. Appellant argues that the record shows the trial court misunderstood the scope of its discretion because it believed that discretion existed only if it determined that placing him on probation would not pose a threat to the victim.

In criminal cases an appellate court may take into consideration the judges statements as a whole [when they] disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in his basic ruling . (People v. Ortiz (1964) 61 Cal.2d 249, 253.) (People v. Butcher (1986) 185 Cal.App.3d 929, 936; see People v. Swanson (1983) 140 Cal.App.3d 571, 574 [this court concluded the record raised the distinct possibility the sentencing court based its choice on subjective belief; remanded for sentencing by another judge].)

Accordingly, we turn to the portion of the reporters transcript that sets forth the trial courts decision to impose a three-year prison term and the reasons for that decision.

The Court: Again, the issue all along and the reason the Courts been continuing this case was to allow the parties to present any additional information that theyd like to present related to the possibility of granting probation and what that would do to the safety of the victim required by the Penal Code that before someone can be placed on probation for spousal rape, the Court has to conduct a hearing and determine that placing someone on probation for that type of offense would not compromise the safety of the victim.

And as Ive told everyone before, based on all the information that I am currently in possession of, I dont believe that I can place [appellant] on probation. I will stand by my indicated sentence of a mitigated term of three years.

The trial courts use of the words before someone can be placed on probation for spousal rape immediately before the words the Court has to clearly indicates its belief that the conditions which followed were mandatory. After using those words, the trial court identified two conditions: First, the Court has to conduct a hearing. Second, the Court has to determine that placing someone on probation for that type of offense would not compromise the safety of the victim.

The second condition identified by the trial court is not consistent with the actual discretionary authority provided to the trial court. (See pt. I., ante.) Thus, it demonstrates that the trial court misunderstood the scope of its discretion.

In addition, the trial courts use of the word can in its statement I dont believe that I can place [appellant] on probation provides a further indication that the trial court believed it had the discretion to grant probation only if it found that appellant did not pose a threat to the victim.

Therefore, we conclude that the record affirmatively shows the trial court misunderstood the scope of its discretionary authority. We further conclude that the trial court would not necessarily have abused its discretion had it decided to grant probation, which was the recommendation in the probation officers report. Thus, remanding for resentencing would not be an idle act. (See People v. Bruce G., supra, 97 Cal.App.4th at p. 1248 [court of appeal determined trial court misunderstood its sentencing discretion, determined granting probation would not have been an abuse of discretion and, therefore, remanded for resentencing].) We, of course, express no opinion regarding what that sentence should be. (Ibid.)

DISPOSITION

The judgment of conviction is affirmed. Appellants sentence is vacated and the matter is remanded to the trial court for resentencing pursuant to its discretionary authority described in this opinion.

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^*Before Vartabedian, Acting P.J., Levy, J. and Dawson, J.

^[1]Further statutory references are to the Penal Code, unless stated otherwise.

^[2]Further rule references are to the California Rules of Court.

^[3]In this context, the noun threat means [o]ne that is regarded as a possible danger; a menace. (American Heritage Dict. (3d college ed. 2000) p. 1411.)

^[4]We note that the Attorney General has not argued the statute should be interpreted to imply that a sentencing court loses its discretion to grant probation if it finds that the defendant poses any degree of threat to the victim. We therefore do not pursue that question.