Filed 10/6/14 P. v. Guzman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066848
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR029519)
                   v.

JULIO GUZMAN,                                                                            OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Joseph A.
Soldani, Judge.
         Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       After defendant Julio Guzman entered a guilty plea to one count of lewd and
lascivious conduct with a child under 14 years old, the trial court imposed a suspended
sentence and placed him on three years’ probation. Guzman was then released to federal
immigration authorities and, by his account, removed to Mexico. About 14 months after
Guzman was first admitted to probation, the trial court summarily revoked probation for
failure to report. Subsequently, over three years after he was first admitted to probation,
Guzman was arrested in Madera County. The trial court found Guzman in violation of
probation, revoked probation, and executed the previously suspended sentence of six
years in prison.
       On appeal, Guzman contends the trial court abused its discretion in finding that he
willfully violated the terms of probation within the probationary period. In the
alternative, he argues the reporting condition was unconstitutionally vague to the extent
he was required to report to the probation department from Mexico. He also argues that
he is entitled to two additional days of custody credit for time he was in custody on
immigration hold.1
       We conclude it was an abuse of discretion to find a willful violation of probation
within the probationary period and reverse the judgment.
                         FACTS AND PROCEDURAL HISTORY
Original criminal case filed in 2007
       On September 4, 2007, the Madera County District Attorney filed a criminal
complaint against Guzman charging him with one count of violation of Penal Code
section 288, subdivision (a),2 lewd and lascivious conduct upon a child under the age of


1      In his opening brief, Guzman also raised a claim regarding an allegedly unauthorized
fine. This matter was apparently addressed by the trial court, and Guzman has withdrawn his
argument.
2      Subsequent statutory references are to the Penal Code unless otherwise indicated.



                                               2.
14 years. This criminal case underlies the appeal, and we will sometimes refer to it as the
original case.
       On January 2, 2008, the parties reached a plea agreement. Guzman agreed to enter
a guilty plea to an amended charge of sexual battery in violation of section 243.4,
subdivision (a), with the understanding that he would be placed on felony probation and
serve “local time” of up to 365 days in county jail.
       After entering his plea, Guzman had contact with the victim while on bail in
violation of a protective order that ordered him not to have any contact with the victim.
This resulted in his arrest and the filing of charges in Madera Superior Court case
No. MCR030723 (second case).
       At a hearing on February 22, 2008, the parties reached a plea agreement resolving
the original case and the second case. Guzman withdrew his guilty plea in the original
case, entered a new guilty plea to the original charge of violation of section 288,
subdivision (a), and the second case was dismissed.3 The parties agreed that Guzman
would receive a six-year suspended sentence and he would be placed on probation for
five years. During the hearing, Guzman’s attorney informed the court of his
understanding that the United States Immigration and Customs Enforcement (ICE) had
been contacted and Guzman would be released from jail to ICE.
Admission to probation and release to ICE in 2008
       At the sentencing hearing on May 6, 2008, the trial court imposed the median term
of six years and suspended execution of the sentence. The court admitted Guzman to
probation for a period of three years and ordered him confined in county jail for 82 days,
his time served.


3     Guzman stipulated to the factual basis recited by the prosecutor that in August 2007,
when he was about 22 years old, Guzman was in a “dating-type relationship” with the victim,
who was 13 years old at the time.



                                              3.
       The probation terms required, among other things, that Guzman: report to the
probation officer within one day following release from custody, report to the probation
officer upon reentry into the United States, not reenter the United States illegally, obey all
reasonable directives of the probation officer, and report monthly or as directed to the
probation officer.
       The court explained the terms of probation to Guzman: “If you are deported,
you’re not to reenter the United States illegally. If you do re-enter the United States
legally, you’re to report to the probation officer immediately upon [your] re-entry into …
the United States. If you’re not deported or you return to the United States, as indicated,
you must report to the Probation Department immediately or within one court date from
your release from custody. So if they let you out today, you have to report to probation
by tomorrow. Do you understand that, Mr. Guzman?” Guzman responded, “Yes, Your
Honor.”
       The court next informed Guzman of the terms and conditions of probation:
“You’re to obey all reasonable, oral and written directives of the probation officer. [¶]
You’re to report monthly or as directed by the probation officer. [¶] You’re to obey all
laws federal, state and local. [¶] You’re not to be away from your reported residence for
more than 24 hours without prior notification of the probation officer. [¶] You’re not to
leave the state without advance written consent of the probation officer.” Guzman was
further instructed not to change his residence address without notifying the probation
officer, not to be around the victim, and to seek employment.
       On May 9, 2008, Guzman was released from county jail to ICE.4




4       A probation officer’s report filed in March 2008 noted that Guzman was a permanent
resident and his residency status had been confirmed with ICE. Thus, there is no suggestion in
the record that Guzman was not in the United States legally in 2008.



                                               4.
Summary revocation of probation for failure to report in 2009
       The probation department filed a petition for revocation of probation. The petition
alleged that Guzman violated the following condition of probation: “‘Report monthly or
as directed to the P.O.’” On July 1, 2009, the trial court granted the petition and
summarily revoked probation.
New criminal charges and finding of violation of probation in 2012
       On January 25, 2012, the Madera County District Attorney filed a criminal
complaint against Guzman (third case). He was charged with engaging in sexual
intercourse with a minor under 16 years of age (§ 261.5, subd. (d); count 1), engaging in
intercourse with a minor more than three years younger than defendant (§ 261.5,
subd. (c); count 2), giving false information to a peace officer (Veh. Code, § 31; count 3),
and driving without a license (Veh. Code, § 12500, subd. (a); count 4).
       In the original case, the probation department filed a petition for revocation of
probation. (The petition incorrectly alleged that Guzman was admitted to probation for a
period of five years; he was placed on three years’ probation.) The petition alleged that
Guzman violated the following conditions of probation: (1) “‘Report monthly or as
directed to the P.O.’”; (2) “‘Obey all laws, Federal, State and Local’”; (3) “‘Not re-enter
the United States illegally’”; and (4) “‘Report to the probation officer upon re-entry into
the United States.’” On February 24, 2012, the trial court granted the petition and
summarily revoked probation.
       Guzman filed a demurrer “regarding revocation of probation and lack of
jurisdiction to revoke probation” (capitalization omitted). He asserted that he was
deported to Mexico as soon as he was released from jail in 2008. As a result, he argued,
he could not report to the probation officer in person and “his failure to do so [within the
original probationary period] was not willful.” He further argued that the alleged
probation violations that formed the basis of the 2012 revocation order occurred after the
original probationary period expired and, therefore, could not be considered by the court.

                                             5.
       On April 20, 2012, the trial court overruled the demurrer. During oral argument
on the matter, Judge Joseph Soldani suggested that Guzman could have reported to the
probation officer even though he was in Mexico. Judge Soldani observed: “I think that
when you’re in a different country you can use a telephone, you can write, you can e-
mail. You can text. You can make contact. [Guzman] made no contact [with the
probation department].”
       On August 3, 2012, the trial court held a joint preliminary hearing on the third
case and court trial on the alleged probation violation in the original case.
       Guzman’s attorney attempted to raise the issue whether a probation violation
occurred during the probationary period. The prosecutor explained that Guzman filed a
demurrer on the issue, which was overruled. The trial court, Judge Roger Wayne, stated,
“I concur with my colleague’s rule that while [Guzman was] a fugitive, the …
probationary period [was] tolled.”
       Deputy Probation Officer Gabrielle Sanchez reviewed Guzman’s probation file
and testified on the factual basis for the summary revocation of probation filed on July 1,
2009. An incident report prepared by a different probation officer and dated June 23,
2009, indicated that Guzman failed to report to the Madera County Probation Department
and his whereabouts were unknown. The incident report also noted that Guzman was
released to ICE on May 9, 2008.
       California Highway Patrol Officer Darren Long testified about the events leading
to the charges in the third case. Long made contact with Guzman during a traffic stop on
January 23, 2012. Guzman was driving and L.R. was the only passenger. Long spoke to
L.R. and saw her California identification card, which showed that she was 16 years old.
She told Long the driver’s name was Julio Guzman.5 L.R. said she and Guzman had a


5       Guzman objected to the use of L.R.’s statements to prove the violation of probation on
the basis of hearsay. The trial court stated, “[W]e’re way beyond the violation of probation. I


                                                6.
prior relationship and had a child together. She reported that she had sex with Guzman
earlier that day. Long also spoke to Guzman. He initially said his name was Jesus
Guzman, which is his brother’s name. After identifying Guzman, Long determined that
his driver’s license had expired.
       Madera Police Officer Mark Trukki later interviewed L.R. He learned that she
gave birth in November 2010. She said the father of the child was her boyfriend,
Guzman. Trukki later spoke to Guzman and asked about his relationship with L.R.
Guzman told Trukki he had sex with her about five times. Guzman acknowledged
paternity of L.R.’s child. Guzman also said there were rumors that the child was not his.
       The trial court ordered Guzman held to answer on all charges.
       On January 11, 2013, the trial court revoked probation and executed the previously
imposed sentence of six years. Guzman received 503 days of custody credit.
       Guzman filed a notice of appeal on March 11, 2013.
                                        DISCUSSION
       Under former section 1203.2, “the court may [summarily] revoke and terminate …
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, has become abandoned to improper
associates or a vicious life, or has subsequently committed other offenses, regardless
whether he or she has been prosecuted for such offenses.” (Former § 1203.2, subd. (a),
as amended by Stats. 1989, ch. 1319, § 1.)6
       Summary revocation of probation under section 1203.2 “‘is proper if the defendant
is accorded a subsequent formal hearing in conformance with due process. [Citation.]

have ruled on that. We are now on the preliminary examination whether this man should be
bound over for the charges alleged.”
6       Further references to section 1203.2 are to the former version. We will omit “former” for
brevity.



                                               7.
[¶] Therefore, after the summary revocation, the defendant is entitled to formal
proceedings for probation revocation. The purpose of the formal proceedings is not to
revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is
to give the defendant an opportunity to require the prosecution to prove the alleged
violation occurred and justifies revocation. [Citation.]’ [Citation.]” (People v. Leiva
(2013) 56 Cal.4th 498, 504.)
       “‘As the language of section 1203.2 would suggest, the determination whether to
… revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting
revocation of probation may be proven by a preponderance of the evidence.’ [Citation.]
However, the evidence must support a conclusion the probationer’s conduct constituted a
willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155
Cal.App.4th 978, 981-982 (Galvan).)
       “We review a probation revocation decision pursuant to the substantial evidence
standard of review [citation], and 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.]’ [Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
       Guzman contends the trial court abused its discretion in finding that he violated
probation by failing to report to the probation department in 2009. He argues that, in
general, when a defendant is removed from the country involuntarily, absent evidence
that the defendant is in the United States during the probationary period, it is an abuse of
discretion to find a willful violation for failing to report to the probation officer.
Essentially, his position is that he was unable to comply with the probation condition that
he report monthly to the probation officer because he was not able to enter the United
States lawfully.
       Guzman’s position is supported by Galvan, supra, 155 Cal.App.4th 978. In that
case, the defendant was required to report to probation within 24 hours of release, but he

                                               8.
was immediately deported upon release from custody. The defendant argued that his
deportation rendered compliance with the reporting requirement impossible, and the
Court of Appeal agreed. (Id. at pp. 983-984.) The court concluded, “The trial court’s
revocation of [the defendant’s] probation was an abuse of discretion because his failure to
comply with the reporting condition had not been willful.” (Id. at p. 985.)
       The Attorney General responds that Guzman could have reported to the probation
officer “in many ways regardless of which country [Guzman] was currently in.” The
issue, then, is whether the reporting condition in this case required Guzman to contact the
probation department while he was in Mexico. “A probation condition should be given
‘the meaning that would appear to a reasonable, objective reader.’ [Citation.]” (People
v. Olguin (2008) 45 Cal.4th 375, 382.) A probation “order must be sufficiently precise
for the probationer to know what is required of him, and for the court to determine
whether the condition has been violated.” (People v. Reinertson (1986) 178 Cal.App.3d
320, 324-325.)
       Here, the trial court instructed Guzman: “If you are deported, you’re not to re-
enter the United States illegally. If you do re-enter the United States legally, you’re to
report to the probation officer immediately upon [your] re-entry into … the United States.
If you’re not deported or you return to the United States, as indicated, you must report to
the Probation Department immediately or within one court date from your release from
custody. So if they let you out today, you have to report to probation by tomorrow.”
       A reasonable and common sense understanding of the court’s order is that
Guzman would be obligated to report to the probation department if (1) he is not deported
or (2) he returns to the United States legally. On the other hand, if he is deported,
Guzman would understand that his only obligation is not to reenter the United States
illegally.
       The trial court observed that while Guzman was in Mexico, he could telephone,
write, email, or text. There is nothing in the record, however, to suggest the probation

                                             9.
department expected Guzman to report in any of those ways. For example, there is no
evidence that Guzman was provided an email address or given instructions on how to
telephone the department from another country. (See Galvan, supra, 155 Cal.App.4th at
p. 985 & fn. 5 [concluding reasonable person in the defendant’s position would
understand “personal appearance before the probation officer” was required and noting
there was no evidence the defendant “was informed he could comply with the reporting
requirements in any way other than by showing up in person”].)7
       Moreover, in People v. Sanchez (1987) 190 Cal.App.3d 224, 231, this court
observed, “Obviously, a convicted illegal alien felon, upon deportation, would be unable
to comply with any terms and conditions of probation beyond the serving of any period
of local incarceration imposed.” In People v. Espinoza (2003) 107 Cal.App.4th 1069,
1076, the Court of Appeal further observed, “Our courts lack jurisdiction to enforce their
probation conditions or to remand the defendant into custody on foreign soil.” In light of
this case law, the Attorney General’s position—that Guzman and his attorney would have
known that he was expected to report to the probation department from another
country—is not reasonable. Accordingly, we conclude the probation conditions in this
case did not require Guzman to report to the probation department from Mexico. Since
there was no evidence that Guzman was in the United States during the probationary




7        The Attorney General attempts to distinguish Galvan asserting that the defendant in that
case was required to “‘report to the probation office.’” As described in the case, the defendant’s
probation conditions related to reporting were: “‘Within 24 hours of your release, you are to
contact the community assessment service center in Tarzana and the probation officer assigned
to that center’” and “‘He is to report to the probation officer upon his release from custody
within 24 hours. [¶] If he does leave the country, he is not to reenter the United States illegally.
If he does return, he is to report to the probation officer within 24 hours and present
documentation which proves that he is in the United States legally.’” (Galvan, supra, 155
Cal.App.4th at pp. 980-981.) We do not find Guzman’s reporting condition to be distinguishable
from the conditions in Galvan in any meaningful way.



                                                10.
period, the trial court abused its discretion by finding a willful violation of probation for
failure to report.
                                       DISPOSITION
       The judgment is reversed.


                                                                  _____________________
                                                                                 Kane, J.
WE CONCUR:


 _____________________
Hill, P.J.


 _____________________
Levy, J.




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