P. v. Wade
Filed 1/27/14 P. v. Wade CA1/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
CLENARD C. WADE,
Defendant and
Appellant.
A137316
(Contra Costa County
Super. Ct. No. 05-080361-9)
Clenard C. Wade was convicted by a
jury of grand theft, battery causing serious
threats, assault by force likely to produce great bodily injury, and false
imprisonment. In an earlier appeal, we reversed
the judgment with directions as to the grand theft conviction, remanded on an issue
of presentence conduct credits, and otherwise affirmed the judgment. (People v. Wade (2012) 204 Cal.App.4th
1142 (Wade I).)
In this second appeal, Wade
challenges the trial court’s November 30, 2012 resentencing order. Wade
contends the trial court should have ordered a supplemental probation report
before resentencing, and that the court should have resentenced him on all
counts instead of limiting resentencing to the one count reversed in the first
appeal. We affirm.
I. Background
Because this appeal only involves
sentencing issues, it is unnecessary to detail the underlying facts. Suffice it to say the judgment of conviction
involved Wade’s threats and acts of violence against two victims, Jane Doe I and
Jane Doe II. The judgment of conviction
resulted in an initial sentence of 33 years eight months to life, consisting of
a term of 25 years to life on count 15 (false imprisonment by violence, Pen.
Code, §§ 236, 237, subd. (a)),
name="_ftnref1" title="">[1]
concurrent terms of 25 years to life on count 2 (battery causing serious bodily
injury, §§ 242, 243, subd. (d)) and count 8 (criminal threats, § 422),
a concurrent term of three years on count 10 (assault by force likely to cause
subd. (a)(1)), a consecutive term of eight months on count 1 (grand theft, § 487),
and eight additional years on four enhancements. (Wade
I, supra, 204 Cal.App.4th at pp. 1145–1146.)
As pertinent here, Wade’s first appeal
resulted in the reversal of his grand theft conviction (§ 487). (Wade
I, supra, 204 Cal.App.4th at pp. 1150–1153.) Our disposition states: “The judgment on count 1 is reversed with
directions as follows: If the People do
not bring the defendant to trial within 60 days after the filing of the
remittitur in the trial court pursuant to section 1382, the trial court shall
proceed as if the remittitur constituted a modification of the judgment to
reflect a conviction of petty theft (§§ 484, 488) and shall resentence the
defendant accordingly, including the determination of presentence conduct
credits. [Citation.] Following resentencing, the trial court is
directed to send an amended abstract of judgment to the
Rehabilitation. In all other
respects, the judgment is affirmed.†(
The People apparently elected not to
retry Wade on count 1. At the November 30, 2012 resentencing hearing, defense counsel
asserted that this court’s disposition in Wade I
entitled Wade to resentencing on all
counts. Counsel indicated his intent to
ask the trial court to strike one or more strikes and to impose a sentence
without a life term. Counsel further insisted
that Wade was entitled to a supplemental probation report under California
Rules of Court, rule 4.411,
name="_ftnref2" title="">[2]
and requested that the court direct the probation department to conduct an
investigation into Wade’s behavior and performance in prison during the three
years subsequent to the original sentencing.
Defense counsel made an offer of proof that he believed Wade’s prison
performance since 2009 had been good, without any disciplinary issues.
The People, and the trial court,
disagreed with defense counsel about the scope of resentencing following
remand. The trial court determined it
lacked jurisdiction to order a supplemental probation report, or to resentence Wade
on counts other than the theft count. The
court stated that even if it had the authority and discretion to do so, it
would decline to exercise its discretion in the manner urged by defense counsel.
Proceeding to “the one count that has
been affected by the appeal,†the trial court directed that count 1 be reduced
to petty theft (§§ 484, 488) and that the sentence be credit for time
served as to that count,
name="_ftnref3" title="">[3]
with the sentence as to all other counts remaining the same. Thus, Wade was sentenced to 33 years to life.
This appeal followed.
II. Discussion
Wade raises four interrelated
contentions. First, he argues the trial
court had jurisdiction, and a duty, under rule 4.411 to order a new probation
report. Second, Wade maintains the trial
court had jurisdiction to reconsider all sentencing options following remand. Third, he asserts the
possibility of a different sentence on remand in light of an updated probation
report. Finally, Wade urges a remand of
the case with directions to obtain an updated probation report and to
resentence Wade on all counts.
A.
Scope of Resentencing
The premise underlying all, or at
least the final three, of Wade’s arguments is the notion that this court’s
disposition of the prior appeal required or permitted the trial court to
resentence Wade on all counts. However,
as the trial court appropriately recognized, this court’s directions upon disposition
of the prior appeal were more limited.
Following issuance of the remittitur
in a criminal appeal, “the trial court is revested with jurisdiction of the
case, but only to carry out the judgment
as ordered by the appellate court.†(People
v. Dutra (2006) 145 Cal.App.4th 1359, 1366.) “The trial court is empowered to act only in
accordance with the direction of the reviewing court; action which does not
conform to those directions is void.
[Citations.]†(
Cal.2d 652, 655.) “[T]he rule requiring
a trial court to follow the terms of the remittitur is jurisdictional in nature.
[Citation.] The issues the trial court may address in the
remand proceedings are therefore limited to those specified in the reviewing
court’s directions, and if the reviewing court does not direct the trial court
to take a particular action or make a particular determination, the trial court
is not authorized to do so. [Citations.]
[¶] . . . In short, when an appellate court remands a matter with
directions governing the proceedings on remand, ‘those directions are binding
on the trial court and must be
followed. Any material variance from the
directions is unauthorized and void.’ [Citation.]†(Ayyad
v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859–860.)
The directions contained in the
disposition of Wade’s first appeal provided that if the People did not retry Wade
on the grand theft count, the trial court was to “proceed as if the remittitur
constituted a modification of the judgment to reflect a conviction of petty
theft (§§ 484, 488) and shall resentence
the defendant accordingly . . . .†(Wade
I, supra, 204 Cal.App.4th at p. 1153 & fn. 5, italics added.) By the italicized language, this court conveyed
its intent to limit resentencing to the petty theft conviction. The trial court properly understood this when
it resentenced Wade, and we find no merit to Wade’s arguments to the contrary.
B. The Trial Court
Committed No Reversible Error by Declining to Obtain a Supplemental Probation
Report
Turning to Wade’s contention that
the trial court had a duty to order a supplemental probation report, Wade
relies on two provisions of rule 4.411.
He first cites rule 4.411(b), which states that “[e]ven if the defendant
is not eligible for probation, the court should refer the matter to the
probation officer for a presentence investigation and report.â€
that the court “must order a supplemental probation officer’s report in
preparation for sentencing proceedings that occur a significant period of time
after the original report was prepared.â€
The original probation report was
prepared on June
17, 2009, and Wade’s resentencing on November 30, 2012, occurred more than three years later, bringing Wade within the
ambit of rule 4.411(c). (
v. Dobbins (2005) 127 Cal.App.4th 176, 181 [observing that the Advisory
Committee Comment to rule 4.411 “suggests that a period of more than six months
may constitute a significant period of timeâ€].)
Although rule 4.411(c) is couched in mandatory terms, that rule has been
interpreted as requiring a supplemental probation report only where the defendant
is eligible for probation. (
1429, 1432 [decided under former rule 411(c)].)
Where, as here (see fn. 4, ante),
a defendant is ineligible for probation, obtaining a supplemental report
remains discretionary with the trial court.
(People v. Johnson, at
p. 1432.)
Where ordering a current probation
report on remand for resentencing is discretionary, the court’s discretion is
narrowed by the use of the word “should†in rule 4.411, which “connotes
strong encouragement, the indication of the preferred practice. Hence, while the court has discretion to
deviate from the preferred practice, it must have a sound reason for doing so. [¶]
. . . [¶] . . . Most assuredly, the court must have some
substantial basis for [denying defendant’s request for a current probation
report]; there must be far more than a subjective desire to avoid
require consideration of something other
than a maximum sentence. Anything less
deprives a defendant of his or her due process right to have the court exercise
informed sentencing discretion. [Citations.]â€
(People v. Tatlis (1991) 230
Cal.App.3d 1266, 1273–1274 [decided under former rule 418].)
Here, after Wade requested a
supplemental probation report at the resentencing hearing, the trial court
contemplated that it had discretion to order such a report before denying Wade’s
request. On this record, the trial court
did not abuse its discretion, but even if it did, any error would not require
reversal under the harmless error standard.
(People v. Dobbins, supra, 127
Cal.App.4th at p. 182, citing People
v. Watson (1956) 46 Cal.2d 818, 834–836.)
In analyzing both questions, we
remain mindful that a supplemental probation report necessarily could have been
utilized only within the narrow scope of our remand, limiting resentencing to
the petty theft conviction. The
resentencing proceedings were limited and did not, as urged by Wade, involve a
reconsideration of the balance of Wade’s sentence, including whether or not the
court should exercise its discretion to strike Wade’s prior strikes.
Wade’s counsel made an offer of
proof during the resentencing hearing that Wade’s prison performance since 2009
has been good and discipline free. Because
the trial court was aware of this uncontested offer of proof at the time of
sentencing, we cannot agree that it failed to “exercise informed sentencing discretion.â€
(People v. Tatlis, supra, 230
Cal.App.3d at p. 1274.) Wade does
not point to any other favorable information that would have been included in a
supplemental probation report. As
previously noted, Wade received a six-month jail term for the misdemeanor petty
theft, with credit for time served. Wade
does not suggest how any information encompassed in an updated probation
report, or in his offer of proof, would have resulted in a more lenient
sentence. Additionally, the judge who
resentenced Wade was the same judge who originally sentenced Wade after
reviewing the original probation report.
(See People v. Dobbins, supra, 127
Cal.App.4th at p. 183.)
Under the circumstances, we are not
persuaded that the trial court erred in denying Wade’s request for a
supplemental probation report. Even
assuming denying Wade’s request was error, we find no reasonable possibility a supplemental
probation report would have affected the court’s very limited sentencing discretion
on remand.
III. Disposition
The judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
