Opinion
A155296
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. JARED SAMUEL KIDD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUKCRCR 17-89869 & SCUKCRCR 17-90864)
Jared Samuel Kidd appeals from the trial court's decision to revoke his probation and order execution of a previously suspended prison sentence. He contends the decision was an abuse of discretion and violated the terms of the plea agreement pursuant to which he was convicted of the underlying offense. We affirm.
BACKGROUND
In April 2017, while intoxicated, appellant entered a car lot while the business was closed and caused damage to 11 vehicles in an amount totaling more than $400. Appellant was charged with felony vandalism (Pen. Code, § 594, subd. (b)(1)), with an allegation that he had suffered a prior prison term for a 2016 conviction for felony vehicle theft. (§§ 667.5, 10851, subd. (a).) At the time of the preliminary hearing, appellant had three additional misdemeanor cases pending, two for driving under the influence (case Nos. 17-88710 & 17-89540) and one for trespassing (case No. 17-88810).
Further unspecified statutory references are to the Penal Code.
While in jail, appellant and three other inmates entered the cell of another inmate and assaulted him, causing the victim to lose consciousness and suffer multiple fractures of facial bones that would require reconstruction surgery, as well as a broken rib. Appellant was charged with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), with allegations that he inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) and suffered the previously alleged prior prison term.
On October 31, 2017, pursuant to a plea agreement under which he would not be sentenced to state prison at the outset, appellant entered pleas of no contest to the counts of felony vandalism and assault by means of force likely to produce great bodily injury, with the related allegations dismissed, and a plea of no contest to the charge of driving under the influence (Veh. Code, § 23153, subd. (e)) in case No. 17-89540, with the remaining misdemeanor cases dismissed. Before taking appellant's pleas, the court confirmed appellant understood that although he would be granted probation at the outset, he could be sent to state prison if he violated conditions of probation.
The probation department was not pleased with the plea agreement: In its November 2017 report, noting the severity of the assault and fact that the codefendants each pleaded to strike offenses and received plea agreements for state prison commitments, the probation officer stated, "[i]t appears [appellant] received a probation promise due to his collateral case (Felony Vandalism) being less serious than his codefendants' collateral cases. However, Probation has a hard time accepting this is a just sentence in comparison. All codefendants appear to be equally responsible and have all the same evidence against them proving they committed this crime. [Appellant] is the only one who blatantly denied involvement and stated it was not him on the surveillance video." The probation report stated that appellant seemed the "least likely amenable to probation" because he had recently failed on probation: After being placed on probation for a 2016 felony conviction of vehicle theft, appellant sustained three probation violations in the first three months, the first two resulting in reinstatement of probation and the third in revocation and a term in "local prison."
The probation report further stated that despite a record of drug and alcohol related convictions, appellant denied having issues with alcohol or drugs. Stating that it was "obvious" appellant could benefit from rehabilitative services, the report noted that appellant would need to accept and willingly participate in recovery and that "[w]hen presented with this same opportunity last year, he did not take it." The probation officer stated that appellant should participate in the "GEO Reentry Services" (GEO) program, participate in "Substance Use Disorder Treatment" and be evaluated by a mental health provider.
The prior record listed in the probation report consisted of two felony convictions, for possession of a controlled substance (2010) and vehicle theft (2016), and four misdemeanor convictions; for disorderly conduct while under the influence (2011), malicious disturbance (2014), resisting an officer (2016) and the 2017 driving under the influence to which appellant pleaded no contest as part of the plea agreement in the present case.
Appellant submitted a letter for consideration at sentencing describing his recognition of the need to accept responsibility for bettering himself and intention to prove he could succeed on probation. He stated, "I am not a bad person, although I obviously make rather poor decisions, specifically when drinking alcohol. I do not have a violent record. Honestly, my record consists mostly of public drunkenness stemming from (semi) conscious decisions to walk home as opposed to driving after drinking." Defense counsel stated at the sentencing hearing that appellant "seems to want to address his substance abuse problem."
On November 29, 2017, the court sentenced appellant to the upper term of four years in prison for the assault and a consecutive eight months for the vandalism, suspended execution of sentence and placed appellant on three years' probation, with conditions including that he serve 365 days in jail with credit for 114 days served, abstain from possessing or consuming alcohol, marijuana or illegal or restricted drugs, submit to chemical testing, be evaluated for and participate in substance abuse treatment and mental health counseling as directed by the probation officer, and attend Alcoholics/Narcotics Anonymous meetings as directed by the probation department. The court observed that appellant was "fortunate" to have execution of sentence suspended in light of the injuries suffered by the assault victim. It agreed with the probation officer's recommendation of an aggravated term on the assault, as the assault involved planning and represented a danger to society, and appellant's prior convictions were numerous and of increasing seriousness, he had served a prior prison term and his prior performance on probation was unsatisfactory.
In May 2018, appellant admitted violating probation by being under the influence of alcohol and refusing to submit to chemical testing. After his arrest for this violation, he had called his probation officer from jail and left a message saying "this was 'bullshit' and referring to the 'cop' with profanities." The probation department recommended execution of the suspended sentence. Its report noted that while on probation, appellant had engaged with GEO services and mental health services, then had obtained a full-time job and been excused from the GEO services, given workbooks to complete and ordered to continue mental health treatment.
Appellant submitted a letter to the court explaining the circumstances of his relapse and describing his hopes to continue working and engaging in the weekly therapy he felt had been helping him deal with his addictions and develop coping skills. At the sentencing hearing on June 7, 2018, defense counsel asked the court to reinstate probation, arguing that this was a first violation after six good months and appellant took responsibility at a relatively early stage of the probation violation proceedings, expected to be able to resume his job if granted probation, was looking for treatment programs and would not oppose any treatment the court ordered.
As appellant explained in the November 2017 letter prior to sentencing on his no contest pleas, his father had died while he was in custody before being granted probation. His letter after the probation violation explained that he "gave in to the escape of drinking" after months of bottling up his emotions over the loss of his father, triggered by going through his father's belongings. Appellant stated that he accepted responsibility for the relapse and was sorry not only for himself but also for his family and others who had been "supporting [his] success."
The prosecutor emphasized appellant's history of offenses, the opportunity he had been given despite concerns about his prior performance on probation and refusal to acknowledge his issues with alcohol, and the choice he had made not only to drink but to refuse testing, arguing that he continued to pose a danger to the community because he was "not ready to stop."
The court revoked probation and ordered execution of the previously imposed sentence. It explained that appellant had a "fairly significant criminal record" at age 26 and was statutorily ineligible for probation at the time of the assault, yet was granted probation based on his expression of belief that his "criminality was fueled by his substance abuse problem and he was prepared to address that." The court noted that appellant did well for a period of months, checking in with probation, engaging with services, maintaining sobriety, and getting a job, but that appellant had a history of getting into trouble in the community when he was drinking and knew he was on a "short leash" on probation because of the seriousness of the underlying offense.
This court granted appellant's unopposed motion for constructive filing of his notice of appeal pursuant to the prison mailbox rule, deeming the notice of appeal timely filed as of August 1, 2018.
DISCUSSION
A trial court is authorized to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." (§ 1203.2, subd. (a); People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v. Urke (2011) 197 Cal.App.4th 766, 772 (Urke).) The court must determine whether the probationer violated the conditions of probation and, if so, what the violation signifies for future conduct. (People v. Johnson (1993) 20 Cal.App.4th 106, 110-111 (Johnson); People v. Beaudrie (1983) 147 Cal.App.3d 686, 691 (Beaudrie).) "The focus is whether a probationer has shown he can conform his behavior within the parameters of the law" (Johnson, at p. 111, quoting Beaudrie, at p. 691) and "can be safely allowed to remain in society." (People v. Monette (1994) 25 Cal.App.4th 1572, 1575 (Monette).)
In reviewing a probation revocation decision, "great deference is accorded the trial court's decision, bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]' (People v. Pinon (1973) 35 Cal.App.3d 120, 123.)" (Urke, supra, 197 Cal.App.4th at p. 773.) " ' "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . ." ' (Rodriguez, supra, 51 Cal.3d at p. 443.) And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant. ([People v.] Vanella [(1968)] 265 Cal.App.2d [463,] 469.)" (Urke, at p. 773.)
Appellant argues that the trial court abused its discretion in revoking probation due to a single alcohol relapse because alcoholism is a disease and relapses are part of the recovery process. He points to, among other things, our observation that " '[t]he risk a former drug or alcohol abuser will relapse . . . can never be entirely eliminated' " (In re Stoneroad (2013) 215 Cal.App.4th 596, 625 (Stoneroad), quoting In re Morganti (2012) 204 Cal.App.4th 904, 921 (Morganti)), and the fact that Proposition 36 allows a nonviolent offender entitled to diversion for substance abuse treatment several relapses before he or she becomes subject to incarceration (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398 ["[a]nticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time"]).
While we take no issue with appellant's underlying premise that alcoholism is a disease, his analogies are not persuasive. Noting our statement that " '[t]he risk an inmate may fall back into alcohol or drug abuse can justify denial of parole only where it is greater than that to which a former drug or alcohol abuser is normally exposed' " (Stoneroad, supra, 215 Cal.App.4th at p. 625, quoting Morganti, supra, 204 Cal.App.4th at p. 921), appellant urges that the record does not suggest he is not amenable to treatment for his alcohol problems or more likely to relapse than other probationers suffering from alcoholism. Our point regarding alcoholism and the risk of relapse in the context of parole release determinations was specific to that context: As we observed in Stoneroad and Morganti, " '[t]he risk a former drug or alcohol abuser will relapse, which can never be entirely eliminated, cannot of itself warrant the denial of parole, because if it did the mere fact [the] inmate was a former substance abuser would "eternally provide adequate support for a decision that [he] is unsuitable for parole." ' " (Stoneroad, at p. 625, quoting Morganti, at p. 921.) Denying release on parole to an inmate who has achieved sobriety during a lengthy period of incarceration based on hypothetical risk of relapse is altogether different from revoking the privilege of probation for violation of a no-alcohol condition. And appellant is not in the situation of a non-violent offender entitled to substance abuse treatment under Proposition 36, as his underlying offense was a violent assault.
As appellant recognizes, the question for the trial court was what his admitted violation of probation signified with respect to his ability to "conform his behavior within the parameters of the law" (Johnson, supra, 20 Cal.App.4th at p. 111) and "be safely allowed to remain in society." (Monette, supra, 25 Cal.App.4th at p. 1575.) The trial court was familiar with appellant and his history. As previously indicated, the court acknowledged that appellant had done well on probation for the six months preceding his violation. But, the court explained, "when [appellant] drinks he doesn't just sit home and avoid problems. He gets out in the community and gets himself into trouble. He did it when he got a D.U.I., he did it when he vandalized peoples' cars, and he did it again this time when he got in trouble with law enforcement and was inappropriate with his probation officer. [¶] You don't send someone to prison because people use offensive words to their probation officer when they're drunk. You have to look at the whole picture. [¶] And this is a person who knew that he had been sentenced to state prison, that he was on a short leash as far as what he could do in order to avoid that outcome for a very serious and violent crime. And he didn't do it. [¶] Unfortunately, I think the interests of justice require that I revoke probation and give him a prison sentence. [¶] It's because in large part because the original crime was so serious, the codefendants got confinement time—a lot of confinement time for their part in that offense. And [appellant] got probation. He didn't take advantage of that opportunity."
The court noted, "I started dealing with [appellant] when he was still a child."
Appellant recognizes "[t]here is no legal rule that obligated the trial court to give [him] another chance after he violated the alcohol terms of his probation." As the trial court explained, although appellant committed a violent offense that seriously injured the victim, he was given an opportunity to address his long-standing problems with alcohol because he convinced the original sentencing court he was finally ready to do so. He knew he was lucky to be given this chance—the court that placed him on probation pursuant to the plea bargain told him he was "fortunate" to have execution of sentence suspended in light of the seriousness of the assault victim's injuries. Appellant knew the probation department did not consider this a fair disposition, knew he faced an aggravated prison term if he violated conditions of probation, and knew before he admitted his violation that the probation department was recommending the court order execution of the prison sentence. Considering all the circumstances, we cannot find the court abused its discretion in revoking probation and ordering execution of the previously imposed sentence.
Appellant further argues it was improper for the court to consider the seriousness of his underlying offense in deciding whether to revoke probation because the circumstances of the offense were unrelated to his performance on probation. Beaudrie and Monette, cases appellant relies upon for the principle that probation revocation proceedings focus on performance on probation, not the underlying offense, discussed this focus of the proceedings in rejecting claims related to proof of the alleged probation violation. Beaudrie rejected the contention that probation could not be revoked based on alleged violation of a federal statute where the probationer had not been convicted of the alleged offense in federal court. Distinguishing People v. Kelly (1869) 38 Cal. 145, which held that a state court lacked jurisdiction to convict a defendant of violating a federal perjury statute absent a corresponding state criminal statute, the Beaudrie court explained, "Unlike Kelly, the inquiry of the court when considering probation revocation is not directed solely to the probationer's guilt or innocence, but to the probationer's performance on probation." (Beaudrie, supra, 147 Cal.App.3d at p. 691.) In Monette, after probation was revoked for possession of a handgun, the probationer argued the evidence was insufficient to establish the corpus delicti of the weapons possession independent of an admission to his probation officer. (Monette, supra, 25 Cal.App.4th at p. 1574.) Monette held the corpus delicti rule inapplicable to probation revocation proceedings because of the differences between such proceedings and criminal trials: "The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he can be safely allowed to remain in society. [Citation.] [¶] . . . . More lenient rules of evidence apply than at criminal trials [citation], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]." (Id. at p. 1575.)
These cases did not consider the facts of the underlying offense and do not support appellant's contention that the underlying offense cannot be considered in determining whether probation should be revoked for violation of a condition of probation. The required determination—what a probation violation indicates about the probationer's ability to conform to legal standards of conduct and whether he or she can safely remain free of incarceration—necessarily depends upon consideration of all the relevant circumstances. Here, the court made clear that the fact appellant was permitted a disposition more lenient than ordinarily would attend conviction of his crime was relevant because of what it said about appellant's awareness of the critical need to comply with his probation conditions, especially those concerning alcohol; because of the seriousness of the offense, appellant knew he was on a "short leash" with respect to compliance. Appellant was aware that he had been given an unusual opportunity to avoid prison due to his expressed intention to finally address long-standing alcohol problems and was engaged in therapy he felt was helping him deal with his addictions, yet violated not only the condition that he avoid alcohol but also the condition that he submit to testing.
In appellant's view, the seriousness of the underlying offense was considered when the original sentencing court imposed sentence and suspended its execution in order to place him on probation, and the second court's decision to revoke probation was in effect an improper "overruling" of the first court's decision to suspend execution of sentence. (People v. Riva (2003) 112 Cal.App.4th 981, 991 ["as a general rule one trial judge cannot reconsider and overrule an order of another trial judge"].) Appellant asserts that "in refusing to reinstate probation, the second judge simply ignored the findings of the previous judge, without any new information or changed circumstances that would warrant a different ruling."
Not so. As we have said, appellant was granted probation despite the seriousness of his offense, and over the probation department's concerns, pursuant to a plea bargain the first court considered him "fortunate" to have received. Appellant knew he faced prison if he violated a condition of probation, and he knew one of the conditions was avoiding alcohol. That the first judge approved the plea bargain in order to give appellant the opportunity to address his problems with alcohol in no way precluded a second judge from revoking probation after appellant violated the no-alcohol condition.
Appellant also argues that consideration of facts related to the underlying offense is prohibited by rule 4.435 of the California Rules of Court, which provides that "[i]n deciding whether to permanently revoke supervision, the judge may consider the nature of the violation and the defendant's past performance on supervision." (Rule 4.435(a).) Appellant suggests that while there is no express prohibition in this provision, under the principle expressio unius est exclusion alterius—"the expression of one thing in a statute ordinarily implies the exclusion of other things" (In re J.W. (2002) 29 Cal.4th 200, 209)—the statement that the court may consider "the nature of the violation and the defendant's past performance on supervision" (rule 4.435) indicates no other factors may be considered.
Further rule references are to the California Rules of Court.
We decline to give rule 4.435 so restrictive an interpretation. Moreover, we disagree with appellant's suggestion that the trial court acknowledged the nature of the probation violation did not warrant executing the prison sentence. Appellant cites to a portion of the transcript in which the court stated, "you don't send someone to prison because people use offensive words to their probation officer when they're drunk." We agree that the court was acknowledging the comparatively minor importance of appellant's conduct with respect to his probation officer: The court had just explained that appellant, when he drinks, "doesn't just sit home and avoid problems" but "gets out in the community and gets himself into trouble. He did it when he got a D.U.I., he did it when he vandalized peoples' cars, and he did it again this time when he got in trouble with law enforcement and was inappropriate with his probation officer." The court acknowledged that appellant's conduct when he got drunk "this time" was less serious than on the previous occasions mentioned. But the court went on to explain its concern with appellant's violation of probation by drinking. As the court said, "you have to look at the whole picture." That picture included appellant's failure to comply with the probation condition central to his having been given a chance to avoid a prison sentence—avoiding alcohol.
Finally, appellant contends that revoking probation based on factors unrelated to his performance on probation violated his plea agreement. He maintains that the probation department, which had objected to the plea agreement from the outset, "did little to aid him in getting the help he needed while he was on probation," thereby depriving him of the "fair chance to succeed on probation" for which he had bargained, and the prosecutor and court used his "relatively minor" violation as a pretext to renege on the plea agreement.
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. (People v. Toscano (2004) 124 Cal.App.4th 340, 344; People v. Gipson (2004) 117 Cal.App.4th 1065, 1069; People v. Haney (1989) 207 Cal.App.3d 1034, 1037; People v. Alvarez (1982) 127 Cal.App.3d 629, 633.) 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)' " (People v. Shelton (2006) 37 Cal.4th 759, 767.)
The clear terms of appellant's plea bargain called for no prison "at the outset." Execution of appellant's prison sentence was suspended and he was placed on formal probation with specified conditions. He confirmed that he understood he could be sent to prison if he violated probation, and before admitting his violations, he was expressly informed that the probation department was recommending permanent revocation of probation and execution of the suspended sentence. The plea agreement offered appellant no basis for claiming the right to a second chance at probation after a violation.
Appellant's suggestion that the probation department undermined his ability to succeed is not supported by the record. Appellant cites the probation officer's June 7, 2018 report, which relates that appellant was referred to GEO services and mental health treatment and "did engage in the programs" but "subsequently obtained a full time job and was excused from continuing with GEO Reentry services." The report continues, "In exchange, he was given workbooks to complete and ordered to remain engaged with mental health treatment." Appellant does not explain what he believes the probation department should have done to better support him.
We find no violation of the plea agreement.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.