Friday, April 18, 2008

new California DUI attorney case considers resentencing a DUI defendant in California

Brand new California DUI attorney case - resentencing a DUI defendant in California

Filed 4/18/08 P. v. McCoy CA1/3

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

ANTHONY ROBERT McCOY,

Defendant and Appellant.
A118741
(Mendocino County Super. Ct.

No. SCUKCRCR 06-71443)


After defendant Anthony Robert McCoy pleaded guilty to driving under the influence of alcohol and admitted to a prior prison term allegation, the trial court imposed an aggravated term of three years on the substantive offense and a consecutive term of one year for the prior prison term enhancement, for an aggregate term of four years in state prison. Execution of sentence was suspended, and defendant was placed on probation for 60 months. After the court found defendant had violated probation, the court put into effect the previously suspended sentence of four years in state prison. On appeal, defendant seeks a new sentencing hearing on the ground that the record does not show the trial court judges who adjudicated his violation of probation and imposed the previously suspended sentence were aware they had the discretion to reinstate him to probation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2006, while he was on parole for a felony conviction for driving under the influence of alcohol (DUI), defendant was arrested for the same offense. In a felony complaint, he was charged with various vehicle code offenses and several sentence enhancements were alleged. At a proceeding before Judge Cindee F. Mayfield, defendant pleaded guilty to a felony DUI offense (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)(1)), and he admitted to a prior prison term allegation under Penal Code section 667.51. Defendant was advised that he could be sentenced to a maximum term of four years in state prison, consisting of the aggravated term of three years for the DUI offense, and a consecutive term of one year for the prior prison term enhancement.

Before sentencing, the probation department filed a report recommending that the then 34-year-old defendant be sentenced to the maximum term of four years in state prison. The probation officer noted that since the age of 18, defendant had 33 convictions, including seven misdemeanor convictions for driving under the influence of alcohol and a felony conviction for driving under the influence with prior convictions. After his felony DUI conviction in 2000, defendant was placed on formal probation and given an opportunity to seek treatment for his alcohol addiction. After several probation violations and failures at treatment, he was sentenced to state prison for two years. He was placed on parole in February 2003, and proceeded to violate it several times. His most serious parole violation occurred in July 2005, when he committed his seventh DUI offense. The charge was reduced to a misdemeanor and he was allowed to serve his sentence concurrent to his parole violation.

At sentencing, defense counsel argued that this was an appropriate case for the court to impose the maximum term of four years in state prison, suspend execution of sentence, and place defendant on probation with the condition that he successfully complete a Drug Court program. Judge Mayfield agreed with defense counsel’s arguments. Defendant was sentenced to four years in state prison, consisting of the aggravated term of three years on the substantive DUI conviction2 and a consecutive term of one year on the prior prison term enhancement, and execution of the sentence was suspended. Defendant was placed on formal probation for 60 months with the condition that he serve one year in county jail with credit for time served. Upon completion of his jail sentence, defendant was required to enroll in and successfully complete an adult Drug Court program, including residential treatment. Defendant did not appeal his sentence.

About one year later, on May 31, 2007, the probation department filed a violation of probation petition. The petition alleged that on December 26, 2006, defendant had been released from custody but had failed to report to a residential drug treatment facility and had absconded; and on December 29, 2006, “Drug Court was terminated as unsuccessful.” The probation department recommended that defendant remain in custody and that the case be referred for a “Custody Credit Memo” or a section 1203c3 report. On June 1, Judge Mayfield arraigned defendant on the petition. Defendant’s probation was summarily revoked pending a hearing on the petition. Because defendant had absconded after being released from jail, bail was denied.

On June 13, 2007, Judge David Nelson adjudicated the probation violation petition. At the beginning of the hearing, defense counsel stated that defendant was prepared to admit to violating probation and she asked the court to refer the case to the probation department for either a section 1203c report or “a memo of time credits.” When the court asked if a supplemental probation report was necessary, defense counsel noted that a full probation report had already been prepared and no further report was needed because defendant had been terminated from drug court, the court had already imposed a prison term with execution of sentence suspended, and thus, all that was needed was a section 1203c report or a memorandum with respect to time credits.

After waiving his rights to a hearing, defendant admitted he violated his probation as alleged in the probation officer’s petition. The court then stated: “All right. The admission is entered and the Court finds it was entered voluntarily with a knowing and intelligent waiver of rights. I will refer it to probation for a custody credit memorandum and also a [section 1203c] report.” Sentencing was continued to June 20th.

On June 20, 2007, Judge Richard Henderson presided at the continued sentencing hearing. The court asked whether the case was “brought back primarily to determine custody credits.” Defense counsel replied: “It is. Based upon the admission and the termination from drug court with an EOSS [execution of sentence suspended] I think the Court at this stage needs to impose the term. . . . [A]t this stage I will submit it on the time credits.” The prosecutor submitted the matter without comment. The court then stated: “The Court will at this time . . . impose the . . . term of four years which had been suspended. The Court will -- obviously, I guess probation was revoked -- terminated. The Court determines that [defendant] will be entitled to a 144 days credit . . . .”4

DISCUSSION

Defendant contends he is entitled to a new sentencing hearing because the record does not show that the trial judges that adjudicated his violation of probation and sentenced him were aware of their discretionary authority to reinstate him to probation on the same or modified terms. We conclude defendant’s argument does not warrant resentencing.

After accepting the defendant’s admission that he violated probation, the trial court had the discretionary authority to either reinstate probation on the same or modified terms or terminate probation and execute the previously imposed and suspended sentence. (People v. Medina (2001) 89 Cal.App.4th 318, 321-323.) However, it is only when an issue entrusted to the trial court’s discretion is properly presented to the court for decision that the court must exercise its discretion. (People v. Angus (1980) 114 Cal.App.3d 973, 987.) And, an “abuse of discretion is not presumed from a silent record, but must be clearly shown . . . .” (People v. Preyer (1985) 164 Cal.App.3d 568, 574.)

In this case, neither Judge Nelson nor Judge Henderson was asked to exercise his discretion to reinstate defendant to probation after he admitted that he violated his probation. Instead, both trial judges granted defendant the specific relief requested by his counsel: (1) that the court put into effect the previously-suspended sentence, which by necessary implication terminated his probation, and (2) that the court award him credit for time served in custody. Having failed to request the trial judges to exercise their discretionary authority to reinstate him to probation, defendant cannot now argue that remand is warranted to permit an exercise of that discretion. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881; People v. Scott (1994) 9 Cal.4th 331, 353; cf. People v. Jackson (2005) 134 Cal.App.4th 929, 935 [defendant could properly raise on appeal that the trial court erroneously assumed it could extend defendant’s probation because defendant had not lead the court into making the error].)

In an apparent attempt to avoid the consequences of his failure to raise the issue of reinstatement to probation below, defendant unpersuasively argues that the record shows the trial judges were either unaware of, or misunderstood, their discretionary authority, which is, itself, an abuse of discretion warranting remand. The trial judges did not state either explicitly, or by necessary implication, that they had no discretion or authority other than to impose the previously suspended prison term.5 Defendant asks us to infer that Judge Nelson concluded he had no discretion because he went immediately from finding a violation of probation to referring the matter to probation for a custody credit memorandum and a section 1203c report. However, Judge Nelson’s statement was no more than an affirmative response to the specific relief requested by defense counsel; it does not support an inference that he was acting under the mistaken belief that he had no other choice. (People v. Angus, supra, 114 Cal.App.3d at p. 987.) Similarly unavailing is defendant’s argument that Judge Henderson’s comment that “obviously I guess probation was revoked-- terminated,” demonstrates that he believed he had no other choice because Judge Nelson had not explicitly terminated probation. Judge Henderson’s comment was nothing more than an appropriate acknowledgement that the record should explicitly reflect that defendant’s probation was revoked and terminated, which was necessarily implied by Judge Nelson’s earlier grant of the relief requested by defense counsel.

Even assuming any purported failures by the trial judges to properly make or articulate their discretionary rulings, we need not remand the matter for resentencing unless defendant establishes prejudice. (People v. Scott, supra, 9 Cal.4th at p. 355; see also People v. Jackson (1980) 102 Cal.App.3d 620, 624-626.) Defendant has not met his burden. On this record, we are convinced that even if we were to remand the matter, it is not reasonably probable that a more favorable sentence would be imposed. (People v. Watson (1956) 46 Cal.2d 818, 836.) Accordingly, resentencing is not warranted.

DISPOSITION

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.



1 All further unspecified statutory references are to the Penal Code.



2 In choosing the aggravated term, the court agreed with the probation officer that the circumstances in aggravation far outweighed the circumstances in mitigation. The probation report indicated that defendant’s acknowledgement of wrongdoing at an early stage in the criminal process was a mitigating factor. The circumstances in aggravation were: defendant’s prior convictions as an adult were numerous and of increasing seriousness, he was on parole for the same conduct when the current offense was committed, and his performance on both probation and parole had been unsatisfactory.



3 Section 1203c provides, in relevant part: “[W]henever a person is committed to an institution under the jurisdiction of the Department of Corrections and Rehabilitation, whether probation has been applied for or not, or granted and revoked, it shall be the duty of the probation officer of the county from which the person is committed to send to the Department of Corrections and Rehabilitation a report of the circumstances surrounding the offense and the prior record and history of the defendant, as may be required by the Secretary of the Department of Corrections and Rehabilitation.” (Id., subd. (a)(1).)



4 Judge Henderson granted defense counsel’s request to continue the matter for a further hearing on defendant’s entitlement to custody credits. On June 29, 2007, Judge Clayton L. Brennan awarded defendant additional credit for time served in custody.



5 Consequently, this case is factually distinguishable from the following cases cited by defendant: People v. Meloney (2003) 30 Cal.4th 1145, 1165, People v. Miller (2006) 145 Cal.App.4th 206, 214; People v. Hard (2003) 112 Cal.App.4th 272, 283 & fn. 3; People v. Medina, supra, 89 Cal.App.4th at p. 320. In those cases, the trial judges explicitly and erroneously stated that they had no discretion or authority other than to impose the challenged sentence.


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.



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