Filed 7/14/16 P. v. Smith CA5
Received for posting 7/15/16

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071288
         Plaintiff and Respondent,
                                                                             (Super. Ct. Nos. F12901344,
                   v.                                                                F12908195)

CHAD EUGENE SMITH,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
         Barbara Ann Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory
B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Franson, J. and Peña, J.
       Appellant Chad Eugene Smith appeals from the sentence imposed following his
guilty plea in two cases. Appellant was sentenced under Penal Code section 1170,
subdivision (h),1 and was thus eligible to have a portion of his sentence suspended so that
mandatory supervision could be imposed. (§ 1170, subd. (h)(5).) Appellant contends the
trial court abused its discretion by failing to properly disclose the reasons for rejecting
mandatory supervision and imposing a “straight-time” sentence. For the reasons set forth
below, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Between April 2012 and October 2013, appellant was accused of criminal conduct
in at least four different proceedings. In case No. F12908195 (the 195 case), appellant
faced five criminal counts, including three charges for identify theft (§ 530.5, subd.
(a)/counts 1, 3, 4), and one charge each for commercial burglary (§ 459/count 2) and
failing to appear (§ 1320, subd. (b)/count 5). In case No. F12901344 (the 344 case),
appellant faced 24 criminal counts, including commercial burglary (§ 459/count 1),
forgery (§ 470, subd. (d)/count 3), two counts of receiving stolen property (§ 496, subd.
(a)/counts 6, 10), and 20 counts of identity theft (§ 530.5, subd. (a)/counts 2, 4, 5, 7-9, 11-
24). Appellant also faced charges in case Nos. F12910295 (the 295 case) and F12910296
(the 296 case).
       On October 10, 2013, appellant pled guilty to counts 1, 2, 10, and 24 from the 344
case, and counts 1 and 4 from the 195 case. In exchange, the remaining counts, along
with all charges in the 295 and 296 cases, were dismissed. Appellant was advised that he
could receive up to six years in local custody in the 344 case and up to three years eight
months in local custody in the 195 case. However, during those proceedings, the trial
court indicated it would consider a total sentence of “4 yrs. 4 months straight time.”



1      All statutory references are to the Penal Code unless otherwise noted.


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       Appellant’s sentencing was originally scheduled for November 25, 2013.
Appellant did not appear for this hearing. A bench warrant issued and a new sentencing
date was scheduled. This pattern continued until March 6, 2015. At that time, appellant
was sentenced to a total term of four years four months in local custody, with no portion
of the sentence suspended.
       At the sentencing hearing, the parties raised only one issue, generally submitting
the matter based on the probation report. While the probation officer recommended a
term of seven years four months, split between four years four months in custody and
three years’ mandatory supervision, appellant’s counsel argued his belief that appellant
had agreed to a “four year four months AB 109” sentence and the prosecutor noted his
belief that “the Court indicated a six year split or four years four months straight time.”
When imposing the straight-time sentence of four years four months, the court explained
its decision not to impose mandatory supervision as follows: “Given the amount of time
that [appellant has] been out of contact with the court and probation, the Court is finding
good cause not to split sentence.”
       This appeal timely followed.
                                       DISCUSSION
       On appeal, appellant does not challenge the ultimate decision to impose a straight-
time sentence as opposed to requiring mandatory supervision. Rather, appellant argues
the trial court failed to meet its obligation to specifically disclose the reasons for denying
mandatory supervision on the record.
Alleged Violation of Section 1170(h)(5)(A)
       Appellant argues the trial court abused its discretion by failing to comply with the
requirement of section 1170, subdivision (h)(5)(A), as interpreted by California Rules of
Court, rule 4.415,2 that any decision to deny mandatory supervision be stated on the


2      All rule references are to the California Rules of Court.


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record. As an initial matter, the parties dispute whether appellant’s contentions are
cognizable on appeal. The crux of this dispute is whether appellant’s plea bargain was
for a specific promise of a four-year four-month straight-time sentence or whether it
included a possible sentence of six years, split between three years in custody and three
years of supervision, although it includes disputes over whether objections were
necessary to preserve the appeal.
       Appellant’s acceptance of the plea suggests the bargain was for a specific term,3 in
which case this appeal would be barred for lacking a certificate of probable cause because
the appeal would challenge the underlying agreement. (People v. Buttram (2003) 30
Cal.4th 773, 781-785.) But this inference relies upon a prior conversation with the trial
court, which is not included in the record on appeal,4 and both the probation report5 and
the court’s imposition of sentence suggest the plea bargain did not include a specific
sentence. We need not resolve this dispute, however, as we find no error in the trial
court’s imposition of a straight-time sentence.




3      Counsel for appellant explained: “[Appellant] would like to accept the People’s
offer and he would like to withdraw his previously entered plea of not guilty and enter a
plea of no contest.… [¶] … [¶] The court has indicated a two year midterm plus eight
months consecutive, another eight months consecutive and one prison prior for a total of
four years, four months time in custody.”
4      As the People explained: “Just to be clear, for the record, this case some time ago
was chatted with the court. [Appellant’s] exposure on the plea was six years. [¶] The
court had indicated giving him the option of a six year split term or straight time four
years, four months, and that’s what it sounds like he opted with.”
5     The probation report recommended a sentence of seven years, with four years four
months in local custody and three years’ mandatory supervision.


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Standard of Review and Applicable Law
       Section 1170, subdivision (h)(5)(A), states: “Unless the court finds that, in the
interests of justice, it is not appropriate in a particular case, the court, when imposing a
sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion
of the term for a period selected at the court’s discretion.”
       Rule 4.415 provides procedural guidance regarding the requirements of section
1170 in this context. “When imposing a term of imprisonment in county jail under
section 1170[, subdivision] (h), the court must suspend execution of a concluding portion
of the term to be served as a period of mandatory supervision unless the court finds, in
the interests of justice, that mandatory supervision is not appropriate in a particular case.
Because section 1170[, subdivision] (h)(5)(A) establishes a statutory presumption in
favor of the imposition of a period of mandatory supervision in all applicable cases,
denials of a period of mandatory supervision should be limited.” (Rule 4.415(a).)
       Rule 4.415 goes on to establish criteria the court “may consider” when
determining whether mandatory supervision is not appropriate in the interest of justice,
including “[w]hether the ... defendant’s past performance on supervision substantially
outweigh the benefits of supervision in promoting public safety and the defendant’s
successful reentry into the community upon release from custody.” (Rule 4.415(b)(4).)
Rule 4.415 explains, however, that the overall determination “must be based on factors
that are specific to a particular case or defendant.” (Rule 4.415(b).)
       Finally, rule 4.415 provides that, “[n]otwithstanding rule 4.412(a), when a court
denies a period of mandatory supervision in the interests of justice, the court must state
the reasons for the denial on the record.” (Rule 4.415(d).) Rule 4.412(a) provides that it
“is an adequate reason for a sentence or other disposition that the defendant, personally
and by counsel, has expressed agreement that it be imposed and the prosecuting attorney
has not expressed an objection to it. The agreement and lack of objection must be recited
on the record.”

                                               5
       Because the trial court’s decision to impose or not impose mandatory supervision
is discretionary, we review it for abuse of discretion. (People v. Sandoval (2007) 41
Cal.4th 825, 847.) Failing to comply with statutory requirements to properly explain a
decision on the record can, standing alone, demonstrate an abuse of discretion. (See
People v. Orin (1975) 13 Cal.3d 937, 945.)
The Trial Court Stated a Sufficient Justification for Its Decision
       In this case, there is no doubt the trial court considered whether to grant
mandatory supervision and stated its reason for choosing not to on the record. The
probation report recommended a three-year period of mandatory supervision and the
People noted their belief that a six-year split term was an option available to the court.
Having reviewed this recommendation and listened to argument, the court stated: “Given
the amount of time that you have been out of contact with the court and probation, the
Court is finding good cause not to split sentence. So it is four years four months straight
time.” Appellant contends this explanation demonstrates an abuse of discretion. We
disagree.
       There is nothing in the statutory language or rule 4.415 that requires the court to
formulaically recite each and every potential factor it considered. Rather, the court is
merely required to account, on the record, for its conclusion that the interests of justice do
not justify mandatory supervision. It did so in this case and its decision was supported by
the record.
       Appellant arrived before the court having six separate failures to appear resulting
in bench warrants, just in the period between his no contest plea and sentencing.6 In
doing so, appellant caused a roughly 14-month delay in sentencing, from November 2013
through March 2015, and demonstrated an unwillingness to comply with court orders,


6     Appellant failed to appear at hearings on November 25, 2013, February 4, 2014,
March 12, 2014, May 15, 2014, July 1, 2014, and March 4, 2015.


                                              6
even in the face of consistent intervention. Indeed, despite being arrested multiple times,
appellant did not appear for sentencing until he was being held in custody prior to the
hearing. This illuminates a factor specific to appellant’s case that warrants denying
mandatory supervision. Successful mandatory supervision is dependent, at least to a
degree, on appellant’s voluntary cooperation following release. Appellant’s conduct also
bears on the suggestion in rule 4.415(b)(4) that courts weigh a defendant’s past
performance on supervision against the benefits of supervision to the community and the
defendant’s successful reentry to society upon release. The trial court’s reliance on
appellant’s conduct to deny mandatory supervision was not an abuse of discretion under
these facts.
                                     DISPOSITION
       The judgment is affirmed.




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