Opinion
C082376
12-12-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES O. McCHRISTIAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F5900)
Defendant James O. McChristian pleaded no contest to being a felon in possession of a firearm in exchange for a two-year state prison sentence lid and dismissal of the remaining charge and two pending cases. The trial court suspended imposition of sentence and placed defendant on a three-year term of probation. After an admitted violation, the court imposed a two-year prison sentence and suspended execution, reinstating probation. After finding a second violation, the court ordered the two-year sentence executed.
Defendant appeals, contending the trial court abused its discretion by executing the previously suspended two-year prison sentence. In defendant's view, the court mistakenly believed it lacked discretion to reinstate his probation after the second revocation. Disagreeing, we shall affirm.
BACKGROUND
We dispense with the facts underlying defendant's conviction as they are not relevant to the issues on appeal. It suffices to say that an information filed in July 2013 charged defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a); count I) and false identification to a police officer (§ 148.9, subd. (a); count II)). In a negotiated plea deal, defendant pleaded no contest to the firearm possession charge in exchange for no more than two years in state prison, dismissal of the remaining charge, and dismissal of two other pending cases. In August 2014, the trial court suspended imposition of sentence and granted defendant probation with various terms and conditions, including that he serve 270 days in the county jail.
Further undesignated statutory references are to the Penal Code.
Defendant failed to report to jail as ordered, and the People petitioned to revoke his probation in January 2015. Defendant admitted the violation and judgment and sentencing on the violation occurred in December 2015.
At sentencing, the People initially asked for a prison sentence, but then agreed to a residential treatment program with a waiver of credits and suspended execution of sentence. The trial court offered defendant the treatment program in exchange for a waiver of all credits earned thus far and potentially earned in the program; defendant agreed.
The trial court imposed a two-year state prison sentence, suspended execution thereof, and reinstated defendant on probation extended to five years, adding the condition that he complete the residential program. The court told defendant the "other option" was prison, but then clarified that it had options beyond prison but was giving him an indicated sentence. The court cautioned defendant that if he failed to complete the program "then you would be sentenced to the two years state prison."
Eight days after transport, the probation department was notified that defendant was not accepted into the program. On December 20, 2015, the People filed a second petition to revoke probation, alleging defendant violated probation by failing to complete the residential program and failing to inform the probation officer. Defendant denied the allegations.
In April 2016, the trial court held a formal hearing on the violations alleged in the second revocation petition. After hearing testimony from the probation officer as well as defendant, the court found both of the alleged probation violations true and ordered a supplemental probation report prior to sentencing. The report "recommended the defendant be sentenced to two years state prison" but nowhere indicated that such sentence was mandated.
At the June 2016 sentencing, defense counsel proposed several options to the court, including sentencing defendant to prison after restoring the presentence credits previously waived, or allowing him to participate in an alternative program for two years while enforcing the credit waiver. Defendant's counsel acknowledged that another available option, which was the People's preferred option, was execution of the prison sentence.
In response, the prosecutor acknowledged that: "The court has the choice to do nothing. There is also the ability to do something in between." The prosecutor asked, however, that the court execute defendant's sentence. No one suggested at any time that execution of the prison sentence was mandatory or that the trial court had only one choice--terminating probation--in addressing defendant's violation.
The trial court then addressed defendant's violations, pointing out that defendant had initially failed to report for serve the 270-day jail term originally imposed as a condition of probation, and that later defendant had expressly agreed to waive credits in order to attend a specific residential program rather than be sent to prison but had failed to do so. The court concluded: "The deal that was made was a state prison sentence with execution suspended to allow the defendant to attend the program that he wished to. In exchange, there was substantial waiver of credits. [¶] Then he was found in violation of that term and again, I believe you [defense counsel] have done an extensive review of the record, however, the Court is bound by very limited options when there is execution of sentence suspended in this manner. [¶] So it appears appropriate for the purpose of sentencing to execute the sentence." (Italics added)
The trial court then executed the previously-imposed term of two years in prison. Defendant timely appealed.
DISCUSSION
Defendant argues that the trial court failed to appropriately exercise its discretion in sentencing. He asserts the court was unaware of its option to reinstate probation and did not believe it could consider all available remedies under section 1203.2. We disagree.
"When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute." (Cal. Rules of Court, rule 4.435(a).) Section 1203.2, subdivision (a) provides that "the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision . . . regardless of whether he or she has been prosecuted for those offenses." (§ 1203.2, subd. (a).) Section 1203.2, subdivision (b) further provides that "the court . . . may modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require." (§ 1203.2, subd. (b).) "[A] decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court." (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.)
We review the court's decision to revoke probation for abuse of discretion. "There is a 'normal presumption that the trial court properly followed established law.' " (People v. Angus (1980) 114 Cal.App.3d 973, 987.)
Here, defendant does not challenge the basis for the revocation, but instead argues only that the trial court was unaware of its discretion and thus failed to properly exercise it. " '[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]' [Citation.] 'Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]' [Citation.] Where . . . a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination." (People v. Downey (2000) 82 Cal.App.4th 899, 912.) However, "abuse of discretion is not presumed from a silent record, but must be clearly shown by appellant." (People v. Preyer (1985) 164 Cal.App.3d 568, 574.) We view the record as a whole to determine whether "the court believed it did not have, or in any event did not exercise, discretion as to whether to revoke probation." (People v. Angus, supra, 114 Cal.App.3d at p. 987.)
Defendant relies on People v. Medina (2001) 89 Cal.App.4th 318 (Medina) to support his position that the trial court mistakenly believed "it had no choice but to execute the sentence and that it lacked the discretion to reinstate defendant on probation." As we explain, Medina is distinguishable on its facts.
In Medina, the defendant pleaded no contest to felony vandalism, and the court suspended execution of his sentence and placed him on probation. (Medina, supra, 90 Cal.App.4th at p. 319.) Three months later, the defendant violated his probation. (Id. at p. 320.) At the probation revocation hearing the trial court stated, " '[E]ven though I'm more in agreement with [the defendant's] position . . . , I don't believe I have any legal recourse other than to-once he violates probation is to sentence him to state prison, because the sentence has already been passed.' [¶] . . . [¶] I have no authority. And I guess this is one of the reasons I hate to come on to sentence where I have no discretion because of what a prior judge has done . . . . [B]ut for the suspension, the execution of sentence, I'll have it on the record that I would probably grant him probation." (Id. at pp. 320-321.) On appeal, this court vacated the sentence and remanded the matter to the trial court because the trial court admittedly failed to exercise its discretion as required by section 1203.2. (Medina, at p. 323.)
In Medina, the trial court unequivocally expressed its erroneous view that it did not have the authority to continue the defendant on probation. Here, as we have described, over the course of multiple hearings the trial court both explicitly and implicitly acknowledged it had choices, after hearing argument about those very choices. At the final hearing, after considering arguments that made clear the court's options included reinstatement of probation with modified terms, and hearing from the prosecutor that the court had options as varied as doing "nothing" or "something in between," the court noted defendant's failings and chose the prison sentence.
Against this backdrop, the trial court stated that it was "bound by very limited options when there is execution of sentence suspended in this manner." The court was correct that because "it appear[ed] appropriate for the purpose of sentencing to execute the sentence" the court's options were limited to the two years previously imposed. But the court clearly understood that the options were only limited when there is execution of sentence; not that its options were limited to execution of sentence at the exclusion of other, probation-based options. Viewed in context, the trial court's statement shows knowledge and appropriate exercise of its discretion.
In light of our conclusion that there was no error, we need not address defendant's remaining arguments that he was deprived of a fair hearing and prejudiced by the trial court's errors.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hull, J.