P. v. Patton
Filed 1/6/10 P. v. Patton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. LEON PATTON, Defendant and Appellant. | E047116 (Super.Ct.No. FSB700197) OPINION |
APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed.
Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Leon Patton pled guilty on March 23, 2007, to possession of an assault weapon (Pen. Code, 12280, subd. (b)) and possession of cocaine base for sale (Health & Saf. Code, 11351.5). Pursuant to the plea agreement, a sentence was imposed, the execution of the sentence suspended, and defendant was placed on probation. On November 7, 2008, the trial court found defendant violated probation and imposed the suspended sentence. Defendant contends the trial court did not understand its discretion. We affirm.
I. BACKGROUND
After the trial court found defendant to have violated his probation, defense counsel requested the Court consider mitigating the terms. The trial court responded, I cant do anythingIm locked in. Defense counsel then requested findings concerning fees. To which the court responded, Well, everythings been imposed. So whatever it is, it is, so I cant. The court then stated to defendant: Theres nothing I can do about your sentence. Youve actually already been sentenced by whoever gave you the original deal of the four years. So I have no alternative but I have to imposeactually Im not imposing itI guess I am butsince its already been ordered by the previous judge I dont have anyI cant give you any other terms. The trial court then imposed the sentence for which execution had been previously suspended.
II. DISCUSSION
A. Discretion to Reinstate Probation
Defendant contends the trial court did not understand its discretion to modify and reinstate defendants probation. We disagree.
When probation terms are violated, a trial court may exercise its discretion to reinstate probation with additional terms rather than imposing a prison sentence. (See, e.g., People v. Hilger (2005) 131 Cal.App.4th 1528, 1531-1532.) Because violations of probation are usually not rewarded, when a trial court does reinstate probation the terms are usually aggravated and not mitigated. (Ibid. [discussing imposition of additional jail time as condition of reinstated probation].) A judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. [Citation.] As this court has stated, we apply the general rule that a trial court is presumed to have been aware of and followed the applicable law. [Citations.] [Citation.] (In re Julian R. (2009) 47 Cal.4th 487, 498-499.)
Defendant contends that the trial courts response to defendants request for mitigated terms, I cant do anythingIm locked in, indicates the trial court was unaware of its discretion to reinstate probation with modified terms. However, reinstated probation terms would not be mitigated, but would be aggravated to account for defendants failure to comply with the prior grant of probation. Accordingly, we have no reason to believe that defendants trial counsel was asking for defendants probation terms to be mitigated. Rather, the use of the word terms must be interpreted to be referring to sentencing terms. Thus, the exchange does not indicate the trial court was unaware of its discretion to reinstate probation, but indicates that the trial court had already concluded that revocation of probation was appropriate. Accordingly, given the presumption of correctness, there is no affirmative indication that the trial court was unaware of its discretion.
B. Discretion to Recall the Sentence
Defendant also contends the trial court did not understand its discretion to recall and modify the prison sentence. Again, we disagree.
On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations], subject to its possible recall under [Penal Code] section 1170, subdivision (d), after defendant has been committed to custody. (People v. Howard (1997) 16 Cal.4th 1081, 1088.) Resentencing due to recall cannot occur at the time probation is revoked. (Id. at p. 1095.)
Because the trial court did not yet have the power to recall the sentence and modify it, any such decision to recall the sentence was not within the trial courts discretion.
Accordingly, we find no affirmative indication that the trial court was unaware of its discretion.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.
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