P. v. Nickerson



















Filed 6/18/13 P. v. Nickerson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. JAELYNE NICKERSON, Defendant and Appellant.

G047334 (Super. Ct. No. 09CF2649) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Thomas M. Goethals, Judge. Affirmed.

Alan S. Yockelson, 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, Barry Carlson and Karl T. Terp, Deputy
Attorneys General, for Plaintiff and Respondent.

* * *

Jaelyne
Nickerson (Defendant) appeals from an order revoking her probation and ordering
her to serve the 10 year sentence previously imposed, but suspended, by the
court. She argues the court violated her
right to due process by ordering her probation revoked without engaging in an
impartial evaluation of whether her violation of the terms of her probation was
significant enough to “merit[] imposition of the ten-year prison term . . .
.” (Capitalization omitted.) She also argues the court erred by ordering
her to pay the full amount of restitution sought by one of her victims, Cal
State Fullerton, because a portion of that sum was not supported by href="http://www.mcmillanlaw.com/">substantial evidence.

We affirm the order
revoking probation. The evidence that
Defendant violated the terms and conditions of her probation was undisputed,
and reflected she was continuing to engage in the same fraudulent conduct which
gave rise to her earlier crimes. Her own
counsel acknowledged that her misconduct was so flagrant “it looks more like a
contempt of court” than an ordinary probation violation, and that she had no
defense which might justify her actions.
Under those circumstances, the court had no choice but to order
Defendant’s probation revoked; it would have been an abuse of discretion not
to. And once the court revoked
probation, it had no discretion to do anything other than execute the 10 year
sentence it had previously imposed, but ordered stayed.

Finally, we need not
reach the merits of the restitution order Defendant challenges. The order was entered in 2010 and was
separately appealable. Thus, her attempt
to challenge it now is both untimely and outside the scope of this appeal.







FACTS



Defendant
was originally charged by felony complaint with one count of seeking aid by
misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)) and four
counts of committing perjury by false application for aid (Pen. Code,
§ 118, subd. (a); all further statutory references are to this code.) That complaint, filed in October 2009,
identified her as Jaelyne Jacsen, “aka Joyalynn Davis[,] Joya Daaliymple [and]
Joyalynn Darlrymple.” By March 2010, the
third amendment to the complaint added the “Jaelynne Nickerson” to the list of
names, deleted one count of committing perjury by false application for aid,
and added one count of grand theft (§ 487, subd. (a)), one count of child
endangerment (§ 273a, subd.(a)), three counts of financial fraud
(§ 532, subd. (a)), and two counts of second
degree burglary (§§ 459-460, subd. (b)).

In June of 2010,
Defendant pleaded guilty to all 11 felony counts, which carried a maximum
prison term of 13 years and 8 months.
Before accepting her plea, the court explained to her that although the
prosecutor considered her a “serial committer of various kinds of fraud,” and
was advocating for an immediate prison term of at least 4 to 5 years, it was
willing to give her a chance to prove the prosecutor wrong. Rather than sending her to prison
immediately, the court was offering her a “negotiated disposition” under which
she would be sentenced to prison for a term of 10 years, but with execution of
that sentence suspended. The court would
then place Defendant on probation for five years, with the requirement she serve
a year in county jail. Among the conditions
of her five year probation, Defendant would be required to “[a]lways use only
your true name,” apparently determined to be “Jaelyne Nickerson,” and to
refrain from “possess[ing] any other person’s personal identifying information
or personal financial information unless approved in advance by your probation
officer.”

The court emphasized to
Defendant that the probation option being offered to her was a “deal[] with the
Devil,” because if she was unable to comply with the terms of her probation, and
“live crime-free as a law-abiding citizen for five years on probation, this is
a huge mistake for you. You ought to
just plead guilty, take your lumps, go to prison for a shorter time right now. Because . . . [y]ou’re going to prison for a
long time if you come back in front of me on a violation.” The court then asked Defendant if she had
“any doubt in her mind that almost certainly you will go to state prison for 10
years if you violate the terms and conditions of your probation at any time
during the next five years?” Defendant
answered “No.”

With that in mind, the
court then accepted Defendant’s plea of guilty to all 11 counts, imposed the 10
year sentence and stayed its execution.
She agreed to all the terms of her probation, and agreed to pay
restitution of $32,851.99 in connection with counts 1, 5, 7, 8, and 11. However, Defendant reserved her right to have
a hearing on the restitution claims asserted by the United States Department of
Education and by Cal State Fullerton in connection with other counts.

In September 2010, the
court held the restitution hearing, and ordered Defendant to pay $21,391 to the
United States Department of Education and $22,609.24 to Cal State Fullerton.

In May 2011, the
prosecutor filed a petition seeking a warrant for Defendant’s arrest, alleging
she had violated several terms of her probation, including the requirement she
not possess any other person’s personal identifying information and the
requirement she use only her true name.
The petition also alleged Defendant failed to report to her probation
officer and her whereabouts were unknown.

The court held a hearing
on the petition the next month. During
the hearing, the prosecutor introduced evidence that Defendant had not only
used false names in connection with the purchase of automobiles in March, April
and May of 2011, but had also done so in connection with applications for food
stamps and cash aid and for Medi-Cal benefits in February 2011. She used a social security number that
belonged to someone else in connection with the vehicle purchase in March 2011,
and she obtained an interim drivers license in the name of Jaelyne Mari Kenadi
in February 2011, which she used in connection with the application for food
stamps. The evidence also demonstrated that
when Defendant’s probation officer informed her she would be taken into custody
because the prosecutor was pursuing additional criminal charges against her,
she fled. Defendant did not dispute this
evidence, did not testify, and did not offer any affirmative defense.

Rather than challenging
the assertion that she violated the terms and conditions of her probation,
Defendant’s counsel frankly acknowledged she had done so: “She wasn’t complying with the terms and
conditions of probation. She was using
names other than the ones the court directed her to do. That’s very clear from the exhibits
[]presented to the court.” Counsel also
admitted that while Defendant had reasons for her actions, those reasons did
not amount to a legal defense, which was “one of the reasons I didn’t call her
to testify to explain it.”

Nor did counsel argue
that Defendant’s probation violations were not significant enough to warrant
revocation of her probation. Instead,
counsel simply asked the court “to impose a sentence of close to five years,”
rather than the full 10 years previously imposed and suspended.

The court found
Defendant was in violation of the terms and conditions of her probation, and
ordered probation revoked. Despite
acknowledging its own reluctance to execute the earlier 10 year sentence, the
court refused to resentence Defendant to a lesser term. “[W]hen I enter into an agreement [with] a
defendant, I regard it as some sort of contract, especially when I go over the
terms and conditions as thoroughly as I did with Miss Nickerson.” The court noted the agreement had not been
unfair, but was simply “a very stiff sentence that she essentially agreed to if
she failed on probation.” Ultimately,
the court concluded “I cannot find any just reason not to impose it.”



DISCUSSION



>1.
The Order Appealed From

Although Defendant
claims she is appealing from a “judgment” which “finally disposes of all issues
between the parties,” she is incorrect.
The judgment in this case was entered back in June 2010, after Defendant
pleaded guilty to the 11 felony counts, and the court imposed the 10 year
sentence. (§ 1191; >People v. Howard (1997) 16 Cal.4th 1081,
1087.)

What Defendant actually
challenges is the court’s order revoking her probation, which was entered in June
of 2012. The order is directly
appealable as an order entered after judgment.
(§ 1237, subd. (b); People v.
Vickers (1972) 8 Cal.3d 451, 453, fn. 2; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) With that in mind, we turn to Defendant’s
contentions.



>2.
The Revocation of Probation

As Defendant points out,
“[t]he fundamental role and responsibility of the hearing judge in a revocation
proceeding is . . . to determine . . . whether a violation of the terms of
probation has occurred, and if so, whether it would be appropriate to allow the
probationer to continue to retain his conditional liberty.” (Lucido
v. Superior Court (1990) 51 Cal.3d 335, 348.) Defendant contends the court erred because it
failed to do either one of those things.

Specifically, Defendant
claims the court “failed to make an impartial assessment of [her] probation
violations and consider the possibility that a resolution other than imposition
of the full [10 year] sentence may be appropriate.” (Capitalization omitted.) Defendant goes so far as to claim “it would
not have mattered if [her] violation had been minor or technical, nor did it
matter what [her] personal circumstances were, because the court had . . .
prejudged the outcome should a probation violation be shown.” The claim is not a persuasive one.

As we have already
noted, both the fact that Defendant violated her probation terms, and the
significance of those violations, were undisputed below. And for good reason. Defendant’s continued pattern of engaging in fraudulent
financial transactions, coupled with her effort to flee after learning she
would be taken into custody, gave the court no reasonable option but to revoke
her probation. These were not minor or
technical violations.

Rather
than disputing those issues, Defendant argued instead that upon revocation of
her probation, the court should have exercised its discretion to sentence her
to a term of less than 10 years, because her probation violation did not
warrant such a lengthy term. She repeats
that argument on appeal. Unfortunately
for Defendant, the court had no such discretion. As explained by our Supreme Court in >People v. Howard, supra, 16 Cal.4th at
p. 1084, “if . . . the court actually imposes sentence but suspends its >execution, and the defendant does not
challenge the sentence on appeal, but instead commences a probation period
reflecting acceptance of that sentence, then the court lacks the power . . . to
reduce the imposed sentence once it revokes probation.” That is what occurred here. The court actually imposed the 10 year
sentence after Defendant pleaded guilty, and suspended only >the execution of that sentence.

Because the court had no
discretion to alter the 10 year sentence it had previously imposed, Defendant’s
undisputed – and significant – violations of the terms of her probation left it
with no alternative but to execute that sentence. There was no error.



>3.
The Restitution Order

Defendant also
challenges the restitution order entered in favor of Cal State Fullerton in 2010,
arguing the full amount of the restitution ordered was not supported by
substantial evidence. However, that
restitution order was directly appealable as an order entered after judgment (>People v. Chappelone (2010) 183
Cal.App.4th 1159; People v. Guardado
(1995) 40 Cal.App.4th 757, 763; People v.
DiMora (1992) 10 Cal.App.4th 1545, 1549-1550), and the time for filing such
an appeal has long since passed.

Citing >In re Harris (1993) 5 Cal.4th 813, 842,
Defendant argues the propriety of the restitution order can be raised at any
time, because it qualifies as an “unauthorized sentence” which may be corrected
“‘whenever the error comes to the attention of the court.’” She is incorrect. As explained in People v. Zito (1992) 8 Cal.App.4th 736, 742, the primary case
Defendant relies upon, an “unauthorized sentence” refers to one where the court
lacked power to impose it. Thus, a restitution order grounded upon a
misapplication of the law can be challenged at any time. By contrast, a defendant’s challenge to “the
identity and specificity of the losses involved” in a restitution order “is a
purely factual issue, [and as such] is susceptible of waiver.” (Ibid.) That is what occurred here. Defendant’s failure to promptly appeal from
the restitution order in favor of Cal State Fullerton effected a waiver.

DISPOSITION

The order is affirmed.









RYLAARSDAM,
ACTING P. J.



WE CONCUR:







BEDSWORTH, J.







THOMPSON, J.