Opinion
NOT TO BE PUBLISHED
APPEAL from an order revoking the suspension of execution of sentence of the Superior Court of Los Angeles County, Ct. No. NA069712, Arthur Jean, Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Norris Walker appeals following the revocation of the suspension of the execution of his sentence previously imposed following his plea of no contest to committing grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)). The revocation resulted in appellant’s commitment to prison for three years. We affirm the order revoking said suspension.
FACTUAL SUMMARY
The record reflects that between March 10 and March 21, 2006, appellant committed the above offense.
CONTENTIONS
Appellant claims (1) the trial court on February 25, 2009, erroneously committed him to prison because the court mistakenly believed, based on an erroneous December 12, 2007 minute order, that the trial court on the latter date imposed sentence but suspended execution thereof, and (2) appellant is entitled to additional precommitment credit.
DISCUSSION
1. Appellant’s February 25, 2009 Commitment to Prison Was Proper.
a. Pertinent Facts.
On May 30, 2006, appellant pled no contest as previously indicated. On that date, the court suspended imposition of sentence and placed appellant on formal probation for three years, on the condition, inter alia, that he complete 60 days of service with Caltrans.
A probation report and “report for general violation(s)” (capitalization omitted) prepared for a July 9, 2007 hearing alleged appellant had violated his probation by failing to report monthly for supervision, to enroll in community service, and to submit to financial evaluation. As to the last issue, the report indicated appellant had paid only $100 on a $3,189 court obligation. The report recommended that the court find appellant in violation of probation, and that probation be revoked “and sentence imposed.” A probation report prepared by a different probation officer for a November 14, 2007 hearing recommended that the court reinstate probation, order appellant to serve time in local custody, and remind him that a future probation violation could result in imposition of his prison sentence.
On December 12, 2007, the court, Judge Mark C. Kim presiding, called the case for a formal probation violation hearing. Appellant’s counsel indicated appellant’s matters appeared to be his first violation. The following later occurred: “[Appellant’s Counsel]:... [¶] I was asking that he be given one last chance. [¶] The Court: He hasn’t done a thing since May of last year. [¶] [Appellant’s Counsel]: I talked to him about that, judge. [¶] The Court: If he comes back, I am going to give him three years. I am going to bring you back in four months for progress report on your Caltrans. And I am going to have to extend his probation one year because he didn’t do anything for a year and a half. Don’t nod, because that means your probation will expire now May 30 of 2010. [¶] [Appellant’s Counsel]: So, basically, you are going to start over again on probation, that’s what he is saying. [¶] The Court: If you get convicted, if you come back with any violation, I will sentence you to three years in prison. Based on your record, I don’t think you can accomplish it.”
Appellant subsequently conferred with his counsel, waived his constitutional rights and a right to a probation violation hearing, and admitted he was in violation of his probation. His counsel joined.
The following then occurred: “The Court: Probation is revoked, reinstated on the same terms and conditions, except[.]” The court then imposed probation conditions, including a condition that appellant do a minimum of one day of Caltrans service per week. The court extended appellant’s probation to May 30, 2010, and continued the matter to March 12, 2008, for a progress report concerning his Caltrans service.
The court then stated, “[w]hat you need to do when you come back to this court, you have to bring from volunteer center that you completed at least 12 days of Caltrans.... If you don’t come back, you haven’t done your Caltrans, basically three years state prison suspended.” (Sic.)
The minute order printed on December 21, 2007, and pertaining to December 12, 2007 proceedings, reflects that, after appellant admitted he violated probation and the court revoked and reinstated probation, probation was continued on the same terms and conditions “with the following modifications.” The modifications included, “serve [three] years in any state prison[.] [¶] Court selects the upper term of [three] years as to count [1].” Appellant was released on his own recognizance.
A probation report prepared for a March 12, 2008 hearing reflects that on February 26, 2008, appellant failed to report to his probation officer. The matter was continued to July 14, 2008, for a progress report. A probation report prepared for a July 14, 2008 hearing alleged appellant had violated probation by failing to perform his Caltrans service and by repeatedly failing to report to his probation officer. The report also reflects that, as to the first violation, on March 12, 2008, appellant represented to the court that he had completed seven days of Caltrans service. The probation officer believed this representation was false, and Caltrans told the probation officer that it had no record of service by appellant. The report indicated appellant was making no effort to cooperate on probation. The report recommended that the court find appellant in violation of probation and revoke it, and that “sentence [be] imposed.” (Sic.) Appellant failed to appear in court on July 14, 2008. The court ultimately scheduled a probation violation hearing for December 31, 2008.
A probation report prepared for a December 31, 2008 hearing indicated appellant’s current balance on his $3,189 obligation was $3,039, he was delinquent, and he last reported to the probation department in September 2008. The report also indicated that, on December 12, 2007, appellant was given “a three year state prison suspended sentence, ” “the three year state prison sentence, ” and “a state prison suspended sentence.” The report recommended that probation be revoked and that “sentence be pronounced and imposed.” (Sic.)
On February 25, 2009, the court, Judge Arthur Jean, presiding, conducted a probation violation hearing, and the sole evidence presented by the People was the December 31, 2008 probation report. A probation officer testified that, after appellant told the court that he had completed seven days of Caltrans service, appellant told the probation officer that appellant had not even started his Caltrans service.
Appellant was represented by a different deputy public defender at the December 12, 2007, and February 25, 2009 proceedings.
After the presentation of evidence, the court found appellant in violation of probation beyond a reasonable doubt and revoked it. The court then stated without objection, “You are committed to prison for the term of three years which was previously imposed and suspended.” Later, in response to questioning by appellant, the court indicated it had found him in violation of probation based on his failures to report and to perform his Caltrans service. The court commented, “I think [appellant] is lying to this court and not doing what he is supposed to do. [¶] I believe that the probation officer’s analysis of Mr. Walker having no intention of doing these things is absolutely correct.”
The notice of appeal in the present case was filed on April 1, 2009, and reflects it is a “Notice of Appeal (following contested probation revocation hearing)[.]” The notice states, in relevant part, “Defendant, Norris Walker hereby appeals from the judgment rendered on February 25, 2009, ... imposed after defendant was found in violation of probation following a contested hearing.”
b. Analysis.
Appellant claims the trial court on February 25, 2009, erroneously committed appellant to prison because the court mistakenly believed, based on an erroneous December 12, 2007 minute order, that the trial court on the latter date imposed sentence and suspended execution thereof. Appellant argues that on December 12, 2007, the trial court did not impose sentence, but merely placed appellant on probation. We reject appellant’s claim.
Appellant does not dispute that the court on February 25, 2009, based on sufficient evidence, properly found appellant in violation of probation and revoked it.
The probation reports prepared for the July 9, 2007 and November 14, 2007 hearings alerted appellant that he could be sentenced to prison for his two alleged probation violations, and one of the reports recommended such imprisonment. Appellant was entitled to challenge the contents of the probation reports (People v. Welch (1993) 5 Cal.4th 228, 234-235), but did not formally do so. That is, appellant came to the December 12, 2007 hearing with two alleged probation violations (which he apparently did not intend to contest) and the prospect he properly could be sentenced to prison.
We presume the probation reports were made available to appellant’s counsel. (Pen. Code, § 1203, subd. (b)(2)(E); Evid. Code, § 664.)
Fairly read, the colloquy on December 12, 2007, between the court and appellant’s counsel prior to appellant’s admission that he was in violation of probation reflects that, on that date, appellant’s counsel was concerned the court might commit appellant forthwith to prison. It was this disposition which appellant’s counsel sought to avoid when he asked the court that appellant be given one “last” chance.
The court’s comments prior to appellant’s admission demonstrate counsel’s concern was justified. The court viewed appellant’s prior performance on probation, and his prospects for future compliance, as dismal. The court anticipated a three-year prison sentence for appellant.
The issue is when the court intended to impose the prison sentence and commit appellant to prison. At one point, the court stated, “[i]f he comes back, I am going to give him three years.” It appears the court thereby indicated that if appellant returned to court in the future because of a new alleged probation violation and the court found true the allegation, the court would “give” appellant three years in prison.
However, the court did not explain what it meant by the term “give.” In particular, the court did not expressly state whether, by that term, the court meant (1) the court would, on December 12, 2007, impose a three-year prison sentence and suspend execution thereof and, if appellant committed a future violation of probation, revoke the suspension with the result he would be committed forthwith to prison, (2) the court would, on December 12, 2007, suspend imposition of sentence and, if appellant committed a future violation of probation, impose a three-year prison sentence and commit appellant forthwith to prison, or (3) the court would, on December 12, 2007, suspend imposition of sentence and, if appellant committed a future violation of probation, impose the sentence and suspend execution thereof and, if appellant committed still another violation of probation, revoke the suspension and commit him forthwith to prison.
Nonetheless, it appears the court’s intent was to fashion a disposition responsive to the request of appellant’s counsel that appellant be given one “last” chance. Both before and after appellant’s admission, the court indicated it viewed appellant’s past, and anticipated, performance on probation as dismal. These facts militate against a conclusion that the court was referring to the above third possibility when the court stated it would “give” appellant three years. The third possibility would have granted appellant, not one last chance, but two chances, affording him greater leniency than even appellant’s counsel had asked for or, we believe, the court had intended.
The remaining issue is whether the court, on December 12, 2007, (1) imposed sentence and suspended execution thereof, or (2) suspended imposition of sentence, intending that, if appellant committed a future violation of probation, the court would impose sentence and commit appellant forthwith to prison. At one point prior to appellant’s admission of his probation violation, the court stated, “[i]f you get convicted, if you come back with any violation, I will sentence you to three years in prison.” (Italics added.) It appears the court thereby indicated that if appellant later committed a new offense for which he was convicted or committed a future violation of probation, the court would sentence him to prison for three years.
The above italicized language, considered with the court’s effort to give appellant one last chance and the court’s criticism of his past, and anticipated, probation performance, suggests the court on December 12, 2007, meant it would suspend imposition of sentence, intending that, if appellant committed a future violation of probation, the court would impose sentence and commit appellant forthwith to prison.
However, it was only after appellant admitted that he violated probation that the court in fact issued its dispositional orders (and appellant is effectively claiming the trial court on December 12, 2007, did not, as part of its dispositional orders, impose sentence and suspend execution thereof). That is, it was after appellant’s admission that the court issued its dispositional orders, revoking and reinstating probation on the same terms and conditions “except” as the court would subsequently indicate otherwise. The court subsequently indicated that if appellant did not return or did not perform his Caltrans service, “basically three years state prison suspended.” (Sic.)
The court did not explain what it meant by the comment, “basically three years state prison suspended.” In particular, the court did not expressly state whether, by that term, the court meant (1) the court would, on December 12, 2007, impose the prison sentence and suspend execution thereof and, if appellant committed a future violation of probation, revoke the suspension with the result he would be committed forthwith to prison, or (2) the court would, on December 12, 2007, suspend imposition of sentence and, if appellant committed a future violation of probation, impose the sentence and suspend execution thereof and, if appellant committed still another violation of probation, revoke the suspension and commit him forthwith to prison. A third construction of the court’s comment does not seem reasonably possible.
The above second construction of the court’s comment would have granted appellant, not one last chance, but two chances, and, for reasons we previously have discussed, this construction would have afforded appellant greater leniency than appellant’s counsel had asked for or the court had intended.
Accordingly, we conclude that when, on December 12, 2007, the trial court stated, “basically three years state prison suspended, ” this was the court’s dispositional order imposing a three-year prison sentence and suspending execution thereof, and the December 12, 2007 minute order was correct insofar as it reflected that, on that date, the court imposed a three-year upper term prison sentence.
Our conclusion is corroborated by subsequent events. As predicted by the trial court on December 12, 2007, appellant, after that date, continued his dismal performance on probation, including apparently misrepresenting to the court on March 12, 2008, that he had completed some Caltrans service. A probation report was prepared for a December 31, 2008 hearing, and presumably the report was made available to appellant’s counsel who represented appellant at the February 25, 2009 proceedings.
Fairly read, the above mentioned report repeatedly stated that, on December 12, 2007, the court imposed a three-year prison sentence and suspended execution thereof. Appellant never challenged these statements. On February 25, 2009, after finding appellant in violation of probation, the court stated, “[y]ou are committed to prison for the term of three years which was previously imposed and suspended.” Appellant did not subsequently dispute below that a three-year prison term previously had been imposed and suspended. These facts corroborate that appellant understood that on December 13, 2007, the court imposed a three-year prison sentence and suspended execution thereof.
Where, as here, a court imposes a prison sentence, suspends execution thereof, and places a defendant on probation, and a court later finds the defendant in violation of probation and orders probation revoked, the court has three options: (1) reinstate probation on the same or different terms, (2) terminate probation, revoke the suspension of execution of sentence, and commit the defendant to prison for the term previously imposed, or (3) terminate probation, and decline to revoke the suspension or to order confinement. (Cf. People v. Howard (1997) 16 Cal.4th 1081, 1087-1088, 1094-1095; People v. Medina (2001) 89 Cal.App.4th 318, 319-323; People v. Latham (1988) 206 Cal.App.3d 27, 29.) The court’s February 25, 2009 decision to select one of these options was a matter within its discretion. (Cf. People v. Medina, supra, at p. 323.)
Appellant, by his failure to raise the issue below, waived the issue of whether the court on February 25, 2009, erroneously exercised its discretion in selecting the second option. (Cf. People v. Gonzalez (2003) 31 Cal.4th 745, 748.) Moreover, in light of the record in this case, we believe any trial court error on February 25, 2009, in selecting the second option and revoking the suspension of execution of sentence was harmless under any conceivable standard because the court would have selected the second option in any event. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
Appellant argues that on December 12, 2007, the court did not impose a three-year prison sentence and suspend execution thereof, but merely suspended imposition of sentence and placed appellant on probation. Appellant cites as evidence that, on December 12, 2007, (1) appellant was not given an opportunity to present mitigation or to argue for the lower or middle term, (2) appellant was not permitted to allocute before sentencing, (3) the court did not inquire if there was legal cause why judgment should not be pronounced, and (4) the court did not state a reason for imposing an upper term.
However, appellant came to court on December 12, 2007, with alleged, and apparently uncontested, probation violations and a probation officer’s recommendation that appellant be imprisoned. Appellant’s counsel told the court he wanted one last chance for appellant, effectively throwing appellant on the mercy of the court. Appellant heard the court’s appraisal of his dismal past, and anticipated, probation performance, and heard the court’s indicated disposition that it would sentence appellant to prison for three years if he was convicted for a new offense or committed a future probation violation. The above was the backdrop of appellant’s admission that he violated probation.
We believe that on December 12, 2007, appellant was given an opportunity to present mitigation or to argue for the lower or middle term, appellant was permitted to allocute before sentencing, it was understood there was no legal cause why judgment should not be pronounced, and it was understood there was a reason(s) (e.g., appellant’s unsatisfactory performance on probation) (Cal. Rules of Court, rule 4.421(b)(5)) for imposition of the upper term.
Appellant also argues that, even if the trial court on December 12, 2007, imposed sentence and suspended execution thereof, that sentence violated his constitutional rights to due process and the determinate sentencing law, because the court on December 12, 2007, sentenced appellant without complying with Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484], or with the determinate sentencing law. Appellant again relies on the four points enumerated in the third paragraph preceding this one.
Appellant’s argument is unavailing for two reasons. First, the record does not reflect that appellant timely appealed from the December 12, 2007 order (see fn. 2, ante). Appellant’s challenge to the propriety of the court’s December 12, 2007 disposition is therefore not cognizable in this appeal. (Cf. People v. Dagostino (2004) 117 Cal.App.4th 974, 996-997; Pen. Code, § 1237; former Cal. Rules of Court, rule 8.308(a); see People v. Mendez (1999) 19 Cal.4th 1084, 1094; but see In re Ramon M. (2009) 178 Cal.App.4th 665, 675 (Ramon M.).
We requested supplemental briefing on this issue and, notwithstanding appellant’s argument that we should reach a conclusion contrary to the above because his December 12, 2007 sentence was allegedly unauthorized, none of the cases cited by appellant in his supplemental letter brief and discussed below compel a conclusion contrary to ours. In particular, Ramon M. was a juvenile ward case involving (1) error with respect to prior and current juvenile petitions, (2) a former notice of appeal provision from juvenile law i.e., former California Rules of Court, rule 8.400(d), and (3) little analysis. We note juvenile wards are subject to the juvenile court’s continuing jurisdiction. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.) In People v. Pelayo (1999) 69 Cal.App.4th 115, the People raised unauthorized sentence issues without filing a notice of appeal, but raised them during the defendants’ appeal and there was no dispute the defendants had timely filed a notice of appeal. People v. Turrin (2009) 176 Cal.App.4th 1200, a case which dismissed the appeal, did not involve an unauthorized sentence or an issue regarding an untimely notice of appeal. Moreover, none of the four enumerated points on which appellant relies demonstrate his sentence was unauthorized.
Second, even if a challenge to the December 12, 2007 disposition was cognizable, appellant, by failing to object below on December 12, 2007, waived the issues of whether the following rights were violated: (1) appellant’s right to a probation revocation hearing at which he could present mitigation or argue for a low or middle term (cf. People v. Martin (1992) 3 Cal.App.4th 482, 486; People v. Dale (1973) 36 Cal.App.3d 191, 193, 195), (2) his right to allocution (People v. Nitschmann (2010) 182 Cal.App.4th 705, 707-708), (3) his right, under Penal Code section 1200, that the trial court inquire whether legal cause existed not to pronounce judgment (see People v. Skinner (1966) 241 Cal.App.2d 752, 757, fn. 5), and (4) his right to the trial court’s statement of reasons for imposing the upper term (People v. Scott (1994) 9 Cal.4th 331, 348, 353).
We requested and received supplemental briefing on this issue.
Finally, as to the merits, we already have concluded appellant had an opportunity to present mitigation and to allocute before sentencing, and we further conclude that any violation of his right to the trial court’s inquiry under Penal Code section 1200, or his right to the trial court’s statement of reasons for imposing the upper term, was harmless under any conceivable standard. (Cf. People v. Champion (1995) 9 Cal.4th 879, 934; People v. Watson, supra, 46 Cal.2d at p. 836; People v. Billetts (1979) 89 Cal.App.3d 302, 309-311; Chapman v. California, supra, 386 U.S. at p. 24.)
2. Appellant Is Not Entitled to Additional Precommitment Credit.
As previously indicated, appellant committed the present offense in March 2006. On February 25, 2009, the trial court awarded appellant a total of 153 days of precommitment credit, consisting of 100 days of custody credit and 53 days of conduct credit. In his supplemental opening brief, appellant advises this court that, after the filing of his original opening brief, the trial court granted appellant’s request to correct his precommitment credit award with the result appellant was awarded a total of 230 days of precommitment credit, consisting of 154 days of custody credit and 76 days of conduct credit.
Appellant, in his supplemental brief, argues that, effective January 25, 2010, Penal Code section 4019 was amended (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50) to increase conduct credits for defendants (such as appellant) who (1) have not been required to register as a sex offender, (2) have not been committed for a serious felony, and (3) have not suffered a prior serious or violent felony conviction, with the result that, according to appellant, he is entitled to 154 days of custody credit and 154 days of conduct credit if the amendment applies retroactively to his 2006 offense.
Our appellate courts are divided on the issue of whether the amended version of Penal Code section 4019 applies retroactively. “The courts in... People v. Otubuah (2010) 184 Cal.App.4th 422, and People v. Hopkins (2010) 184 Cal.App.4th 615... hold the amendments to [Penal Code] section 4019 should not be given retroactive application. Other Court of Appeal panels that have published opinions on the issue hold that the amendment should be applied retroactively. [Fn. omitted.]” (People v. Eusebio (2010) 185 Cal.App.4th 990, 993 (Eusebio).)
The omitted footnote reads, in relevant part: “See... People v. House (2010) 183 Cal.App.4th 1049... (2d Dist....); People v. Landon (2010) 183 Cal.App.4th... (1st Dist....); People v. Delgado (2010) 184 Cal.App.4th 271... (2d Dist....); People v. Norton (2010) 184 Cal.App.4th 408... (1st Dist....); People v. Pelayo (2010) 184 Cal.App.4th 481... (1st Dist....); and People v. Keating (2010) 185 Cal.App.4th 364 (2nd Dist....). The cases are still coming down.” (Eusebio, supra, 185 Cal.App.4th at p. 993.) The issue is pending before our Supreme Court in, e.g., People v. Rodriguez, review granted June 9, 2010, S181808, (briefing deferred pursuant to rule 8.512(d)(2), Cal. Rules of Court.)
Eusebio observed that (1) the statute at issue amending Penal Code section 4019, pertaining to county jail inmates, also amended the law pertaining to prison credits with the result that county jail inmates, and state prison inmates, would receive enhanced conduct credit (on a one-to-one ratio), and (2) nothing in those provisions indicated the enhanced prison conduct credit applied retroactively, except for a single provision (Pen. Code, § 2933.3, subd. (d)) which expressly provided for limited retroactive application for a certain class of prisoners. Eusebio concluded that the Legislature thus knew how to signal an intent that enhanced conduct credit apply retroactively, and the Legislature’s failure to include retroactive language regarding the enhanced conduct credit applicable to county jail inmates permitted the inference the Legislature did not intend the amendment to Penal Code section 4019 to have retroactive effect as to those inmates. (Eusebio, supra, 185 Cal.App.4th at pp. 994-995.)
We agree. Penal Code section 4019 as amended in January 2009 does not apply retroactively to appellant’s 2006 offense; therefore, he is not entitled to additional conduct credit.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J.CROSKEY, J.