P. v. Davila
Filed 2/24/12 P. v. Davila CA4/3
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
John Francis Davila,
Defendant and Appellant.
G044123
(Super. Ct. No. 05HF0339)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, W. Michael Hayes, Judge. Affirmed as modified.
Marilee Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant John Francis
Davila challenges his probation revocation.
He contends the probation condition that he avoid “places where minors
congregate, including but not limited to . . . parks” was
overbroad as applied to a soccer field in a park. He also contends the court failed to award
him custody credits. Only the second
contention has merit. We modify the
judgment to correct the custody credits, and affirm.
FACTS
Defendant
pleaded guilty in 2005 to committing a lewd act on a child under the age of
14. (Pen. Code, § 288, subd. (a).)
on the condition he serve 300 days in county jail, with 289 total days of
custody credit. As a condition of
probation, the court ordered defendant not to “associate with minors or
frequent places where minors congregate, including but not limited
to . . . parks [and]
playgrounds . . . .”
The court also required defendant to register as a sex offender.
In April 2008, defendant
appeared at a probation revocation hearing.
After a chambers conference, the court stated, “if [defendant] admits
his violation, I intend to impose credit time served, place him back on
probation and, when, in fact, he should go, according to the current rules that
we follow, he should be in prison if he violates.” Defendant admitted violating
probation — the record does not identify the specific violation. The court reinstated probation on the
condition defendant serve 469 days in county jail — “313 actual days, 1[5]6
good time/work time.” It told him, “You
are going to stay at the county level, not going to go on to state prison
unless you mess up like you did the other violations.”
In
July 2009, defendant’s probation officer filed a petition to revoke
probation. He alleged defendant (1)
failed to re-register as a sex offender within five days of his birthday (§
290.012, subd. (a)), (2) failed to “violate no law” by willfully failing to
register as a sex offender (ibid., §
290.018, subd. (b)), and (3) frequented a place minors congregate by going to Marina
Hills Park
in Laguna Beach.
At
the probation revocation hearing, the probation officer testified about
defendant’s alleged parole violations.
He testified defendant last registered as a sex offender on June 4, 2009. Defendant did not register again within five
days of his June 27 birthday. The
probation officer further testified defendant admitted playing soccer with
adults in Marina Hills
Park on the night of June 18. Marina
Hills Park
is “a big park” with “two soccer fields . . . , two
baseball fields and a playground.”
Defendant told the probation officer he saw children playing on the
other fields and the playground, but he had no contact with them. The probation officer acknowledged he had
given defendant permission earlier to play in an adult soccer league at “a club
soccer field” in Anaheim. But they did not discuss whether defendant
could play soccer anywhere else.
An investigator also
testified defendant admitted playing soccer at Marina
Hills Park,
on a soccer field next to a playground.
The investigator had driven by the park on other occasions and seen
children playing there after 5:30 p.m.
A community services
officer testified defendant had registered with him back in 2008, though he had
no independent recollection of speaking with defendant. If defendant had asked him, he would have
told defendant that he could register “early.”
By this, he would have meant defendant could register within five days
before his birthday.
Defendant
register whenever he changed residences and each year within five days of his
birthday. But when he went to register
back in June 2008, the community service officer had told him he could register
early. Defendant acknowledged he knew he
should avoid places where minors congregate, including parks. But he did not believe that barred him from
playing soccer with adults at Marina Hills
Park. The probation officer had given him “the
impression” he could play soccer without violating probation. And he did not see any minors on the soccer
field on June 18, 2009. He did see a minor playing on the playground,
as well as someone who might have been a minor on a baseball field that
“overlaps” the soccer field. There were
also people playing on another soccer field, though they were too far away to
see clearly.
The court revoked
defendant’s probation. It found he
failed to register within five days of his birthday, and frequented a place
where minors congregate. It found
defendant did not violate any law, though, because he had not been convicted of
any crime.
After the hearing,
defense counsel asked the court to continue the sentencing date. Defense counsel wanted to “gather the
documents, the dates for all the times that [defendant] did comply with his
probationary conditions. That, of
course, is a matter that the court should consider for sentencing . . . .” When the court asked why that was necessary,
defense counsel asked the court “not to sentence the defendant to state
prison.” The court replied: “Well, there’s no local time left, as I
understand it. [Defendant] couldn’t get
anything but a state prison sentence based on the information you supplied to
me during the trial. Looks like he’s got
over 700 days credit minimum. So there
is no local time left in his future. The
question is how much prison time does he get sent to” Defense counsel asked for time to submit a
sentencing brief, which the court granted.
At the sentencing
hearing, the court sentenced defendant to three years in state prison — “That’s
the minimum I can give him.” It noted a
“running debate” about defendant’s custody credits. The prosecutor initially stated defendant
“was in custody, a total of 769 days,” but then agreed with the court it was
387 days. The court granted 445 days of
credits to defendant, comprising 387 days of presentence custody credit and 58
days of conduct credit.
DISCUSSION
Applied to Defendant
Defendant concedes he saw at least one minor at Marina Hills Park when he played soccer there. But he contends the
probation condition that he avoid “places where minors congregate, including
but not limited to . . . parks,” was vague and overbroad as applied to a soccer
field being used at that time by only adults.
title="">[2]
“A probation condition ‘must be sufficiently
precise for the probationer to know what is required of him, and for the court
to determine whether the condition has been violated,’ if it is to withstand a
challenge on the ground of vagueness.
[Citation.] A probation condition
that imposes limitations on a person’s constitutional rights must closely
tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.”
(In re Sheena K. (2007) 40
Cal.4th 875, 890.)
The probation condition was not unconstitutionally
vague. It plainly advised defendant to
avoid “places where minors congregate, including but not limited
to . . . parks . . . .” This gave sufficient notice to defendant to
avoid playing soccer in a public park, in which the soccer field is surrounded
by playing fields and a playground. Defendant
should have reasonably known not to play soccer at Marina Hills Park even if no
children happened to be on the field at that time. In any event, defendant conceded seeing at least
one child on the adjacent playground — and possibly more children on the other
soccer field and the baseball field that overlapped his field. Defendant reasonably should have known to
avoid the soccer field at Marina Hills Park.
title="">[3]
Nor was the probation condition overbroad. The legitimate purpose of the probation
condition is to deter future criminality by barring defendant — who pleaded
guilty to committing a lewd act on a minor — from “a probable situs at
which [he] might duplicate [his] offense.”
(People v. Delvalle (1994) 26
Cal.App.4th 869, 879.) And “the state
has a compelling interest in the protection of children which justifies the
restriction on [defendant’s] freedom of association.” (Ibid.) A condition barring a probationer from
frequenting places where minors congregate is not overbroad if “applied to such
places as elementary schools, day-care centers, and parks.” (
barring defendant from locations where he might find children to abuse and
barring him from playing soccer at a public park with playing fields and
a playground.
Because the court permissibly revoked probation on
this ground, we need not determine whether it erred by finding defendant failed
to register by registering three weeks too early. (But see People
v. Galvan (2007) 155 Cal.App.4th 978, 983 [“A trial court abuses its
discretion by revoking probation if the probationer did not willfully violate
the terms and conditions of probation”]; People
v. LeCorno (2003) 109 Cal.App.4th 1058, 1069 [reversing conviction for
failure to register where court did not instruct jury that defendant must know
of his duty to register in both cities in which he resided — “An omission is
neither purposeful nor willing if it is based upon ignorance of the
requirements of the law”].)
No
Substantial Evidence Showed Defendant Waived His Custody Credits
Defendant contends
the court wrongly denied him some of his custody credits.
court awarded defendant 445 days of
custody credit for time served between his arrest on the July 2009 probation
violation petition and sentencing. He
contends he is further entitled to an additional 769 days of custody credit for
time served in county jail as a condition of the initial grant of probation in
2005 (300 days) and as a condition of reinstating probation in 2008 (469 days).
“[W]hen the defendant has been in
custody . . . all days of
custody . . . including days served as a condition of
probation . . . shall be credited upon his or her term of
imprisonment . . . .”
(§ 2900.5, subd. (a).) Thus,
“actual time previously served in county jail, including time served as a
condition of probation” is “credited against any new ‘term of imprisonment’
served in the county jail for the same offense, including any new jail term
imposed as a condition of continuing or reinstating the defendant on
probation.” (People v. Arnold (2004) 33 Cal.4th 294, 300-301 (
But “Penal
Code section 19.2 has long imposed a one-year limitation on the time that can
be served in county jail as a condition of probation upon conviction of a
felony or misdemeanor, or upon recommitment to the county jail as a condition
of reinstatement of probation.” (
sentencing courts in those cases in which
the defendant had already served a year or more in county jail as a condition
of probation before subsequently violating probation. In such cases, if the sentencing court
desired to reinstate the defendant on probation, the interplay of the two
statutes forced the sentencing court to choose between sentencing the defendant
to state prison or imposing no additional jail time as a condition of
reinstatement of probation—because applying custody credit for the earlier one
year of county jail time against the new county jail term would result in the
defendant’s having already served the maximum one-year county jail term
permitted under section 19.2 for the new violation.” (Id. at
p. 301.)
To resolve
this dilemma, “a defendant [may] waive custody credits . . . for county jail
time previously served, in order to permit a sentencing court to reinstate
probation conditioned on service of an additional period of up to one year in
county jail for [a] new probation violation, without running afoul of section
19.2’s one-year limitation on county jail terms . . . .” (Arnold,
supra, 33 Cal.4th at p. 302.) This is referred to as a Johnson waiver. (
condition a grant or extension of probation upon a defendant’s express waiver
of past and future custody credits.” (People
v. Johnson (2002) 28 Cal.4th 1050, 1055.)
“‘As with
the waiver of any significant right by a criminal defendant, a defendant’s
waiver of entitlement to section 2900.5 custody credits must, of course, be
knowing and intelligent.’
[Citation.] The gravamen of
whether such a waiver is knowing and intelligent is whether the defendant
understood he was relinquishing or giving up custody credits to which he was
otherwise entitled under section 2900.5.”
(Arnold, supra, 33 Cal.4th at p. 308.)
“‘[A] custody credit waiver may be found to have been voluntary and
intelligent from the totality of the circumstances, even if the sentencing
court failed to follow the “better course” of specifically advising the
defendant regarding the scope of his waiver.’”
(Id. at p. 306.)
A
“for all purposes” and “will apply to any future prison term should probation
ultimately be revoked and a state prison sentence imposed.” (Arnold,
supra, 33 Cal.4th at p. 309.) Otherwise, in cases with multiple
the aggregate time served in county jail will equal or be greater than the
suspended prison sentence for the original offense. In such cases, if the credits can permissibly
be ‘recaptured’ [citation] by the defendant when his own misconduct ultimately
leads to revocation of probation and imposition of a prison term, he will have
no prison term left to serve.” (
who have repeatedly been shown the most leniency . . . to violate
probation with impunity, secure in the knowledge that the specter of an actual
prison sentence is no longer hanging over their heads . . . .” (Ibid.)
This
general rule would bar defendant from recapturing any custody credits he had
waived in order to obtain or reinstate probation — assuming the waiver was
knowing and intelligent. Defendant
asserts he “did not waive his credits for time served in county jail following
his first probation violation.”
The
Attorney General concedes “the record is unclear as to whether [defendant]
waived his prior custody credits as a part of a negotiated probation.” It is.
When would defendant have entered into a Johnson waiver Not in
October 2005, when the court first granted probation. The court granted probation on the condition
defendant serve 300 days in county jail — less than the one-year maximum. What about in April 2008, when the court
reinstated probation on condition defendant serve 469 days in county jail Presumably, those 469 days equaled 313 actual
days defendant served after his arrest on that probation violation, plus 156
days of conduct credits. The court
stated it would “impose credit [(for
] time served.” And the court seems to have assumed defendantwas waiving any prior custody credits — i.e., the 300 days he served in 2005 —
when it reinstated probation. It told
him he was “going to stay at the county level, not going to go on to state
prison,” “when, in fact, he should go, according to the current rules that we
follow, he should be in prison if he violates.”
But the record lacks any express statement that defendant was knowingly
and intelligently waiving his custody credits, as might be contained in a
written plea agreement. (Cf.
defendant] then executed a written waiver” of “ALL CREDITS”].) Finally, did defendant enter a knowing
revocation hearing The record shows
none, which makes sense — the court imposed no additional county jail
time. And the court initially noted
defendant had “over 700 days credit minimum,” before later telling counsel
defendant had only 387 days credit.
Should
we hold the record’s silence against defendant
The Attorney General asserts “[i]t is [defendant’s] burden to provide
the court with a complete record on appeal.”
But defendant met his burden. He
provided us with the reporter’s transcript of each relevant hearing, including
the April 2008 hearing. On their faces,
these transcripts show no waiver.
Defendant further provided us with the clerk’s transcript index from a
prior appeal from the denial of his petition for a writ of coram nobis, which
identifies documents through April 2008 but does not identify a written plea
agreement. This shifted the burden to
the Attorney General. But the Attorney
General has failed to provide any written document or other evidence showing
defendant made a knowing and intelligent Johnson
waiver in April 2008 or at any other time.
The
Attorney General contends the best course would be to remand the matter to the
trial court to “clarify . . . whether [defendant] waived prior custody credits
in exchange for his grant of probation and reinstatement of probation.” We disagree.
If “[t]he record does not reveal a knowing and intelligent waiver of
defendant’s right to custody credits under section 2900.5,” the proper course
is to modify the judgment to award them.
(People v.
DISPOSITION
The judgment is modified
to award an additional 769 days of custody credits to defendant, for a total
credit of 1,156 days. The court is
directed to prepare a new abstract of judgment accordingly and forward it to
the Department of Corrections and
Rehabilitation.
As
modified, the judgment is affirmed.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
All further statutory
references are to the Penal Code.
Defendant does not
challenge the probation condition for failing to contain a knowledge
requirement. But any error would be
harmless because he saw a child on the playground next to the soccer field. (See People
v. Urke (2011) 197 Cal.App.4th
766, 775-776 [where undisputed testimony shows the defendant “played with
several children,” it was harmless whether his probation condition should have
barred “‘associating’ with minors, rather than being in their ‘presence’”]; see
also id. at p. 775, fn. 4 [court
permissibly modified probation condition to include knowledge requirement
before finding defendant “was ‘in the knowing presence of a minor’”].)
