Filed 3/25/14 P. v. Watson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047650

         v.                                                            (Super. Ct. No. 12CF0510)

DAVID LEE WATSON,                                                      OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, James A.
Stotler, Judge. Reversed and remanded for resentencing.
                   Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              Defendant David Lee Watson appeals from an order revoking his probation
and executing a previously suspended sentence under Penal Code section 1203.2,
subdivision (c). He contends the court committed legal error when it expressed the
position that, given the probation violations, it had no choice but to execute the sentence.
He also contends the court violated his right to due process by considering uncharged
probation violations in deciding to revoke probation. We agree with defendant’s first
contention and remand for resentencing, which makes consideration of his second
contention unnecessary.


                                          FACTS


              In March of 2012, defendant pleaded guilty to one count of possession of
methamphetamine in violation of Health & Safety Code section 11377, subdivision (a),
and one count of possession of marijuana in violation of Health & Safety Code section
11357, subdivision (b). Defendant admitted he had one prior strike (robbery), and had
served four prior prison terms under Penal Code section 667.5, subdivision (b). The
court struck the strike and the four prior prison terms for sentencing purposes.
              The court sentenced defendant to two years in state prison on the first count
and suspended imposition of sentence on the second. The court then suspended
execution of the two-year sentence and placed defendant on formal probation for three
years. Among other terms of the probation, defendant was required to complete a one-
year drug rehabilitation program.
              In April of 2012, defendant enrolled in the Victory Outreach Rehabilitation
Program (Victory Outreach) in Santa Ana. Defendant did not like that home, so he
transferred to a different Victory Outreach home in Santa Ana 10 days later. According
to defendant’s probation officer, for the first three and one-half months, defendant was in



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regular contact with her, compliant with his probation conditions, and doing fairly well at
Victory Outreach.
              In July of 2012, defendant was having problems with his knee and unable
to work, so he moved to the Victory Outreach home in Buena Park, which could
accommodate him better. While there, defendant was discovered in possession of banned
cigarettes and a cell phone. As a result, defendant moved to the Victory Outreach home
in La Habra. But on his first day at the La Habra home, defendant was found with
marijuana, a cell phone, cigarettes, and a lighter. This violated the rules of Victory
Outreach, but would not have resulted in expulsion from the program.
              Nonetheless, defendant left the La Habra home that same day and
transferred to the Victory Outreach home in Carson. Once there, his parole officer from a
prior drug conviction informed defendant that he had to leave the Carson home because it
was in Los Angeles County and his parole conditions required him to live closer to
Orange County.
              He then contacted his probation officer from this case, who instructed
defendant to report to her in person on August 30, 2012, to turn himself in for a probation
violation. Defendant failed to appear and never reported to his probation officer again.
              Defendant was arrested on September 30, 2012. A few days later, the
People filed a petition for arraignment on probation violation (Petition), alleging four
violations: (1) failure to complete the one-year rehabilitation program; (2) failure to
maintain an approved residence because, on two occasions, he changed his residence
without notice; (3) failure to report in person to his probation officer on August 30; and
(4) failure to submit to drug testing on August 30 (because he failed to appear). The only
witness to testify at the hearing was defendant’s probation officer.




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              During argument, defense counsel requested that the court “reinstate
probation, impose 90 days jail, and allow Mr. Watson a second chance at rehabilitation
with a different program.” The court replied that this was not an option: “This is not a
case where the imposition of sentence was suspended. This is a case where the defendant
was sentenced to state prison for two years, execution of which was suspended. [¶] And
there is a case, it’s a Supreme Court case called People vs. Howard [(1997) 16 Cal.4th
1081], that says, once the defendant is found in violation, you pretty much have to
execute that sentence. Now I know there’s a way around that and not that the court
would participate in such a thing. I’m not saying that. But that is the case can be like
totally renegotiated where it would like almost require a plea withdrawal and then a re-
plea. And then, you know, imposition of sentence is suspended, and then you go by these
machinations, and somehow you’d get to a situation where the court has discretion that is
not . . . limited by People vs. Howard.”
              The court found defendant in violation of all four probation conditions
charged by the People. It then terminated defendant’s probation and executed the
previously suspended two-year prison sentence. Defendant timely appealed.


                                       DISCUSSION


              Revocation of probation lies within the broad discretion of the trial court.
(People v. Angus (1980) 114 Cal.App.3d 973, 987.) Absent abuse of that discretion, an
appellate court will not disturb the trial court’s findings. (Id. at pp. 987-988.)
              Defendant first contends the court committed legal error in its interpretation
of People v. Howard, supra, 16 Cal.4th 1081 (Howard), improperly concluding that, after
finding defendant violated his probation, it had no discretion with regard to executing the
suspended sentence. We agree with defendant.



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              The court in Howard framed the issue as follows: “When the trial court in
a criminal case decides at time of sentencing to grant the defendant probation, the court
may either suspend imposition of sentence or actually impose sentence but suspend its
execution. [Citation.] If the court has suspended imposition of sentence and later
revokes the defendant’s probation, then the court has undisputed authority to choose from
all the initially available sentencing options. [Citation.] If instead the court actually
imposes sentence but suspends its execution on granting probation, and the sentence
becomes final and nonappealable, does the court retain similar authority to impose a new
sentence different from the one previously imposed?” (Howard, supra, 16 Cal.4th at p.
1084, fn. omitted.) Answer: No. (Ibid.)
              The issue here, however, is slightly different: does the court retain the
discretion to reinstate probation? The Howard court answered that question in the
affirmative. The court interpreted Penal Code section 1203.2, subdivision (c), which
states that in suspended execution cases the court “may revoke the suspension and order
that the judgment shall be in full force and effect.” (Italics added.) The Howard court
interpreted the word “may” as presenting two options: Penal Code “section 1203.2,
subdivision (c), merely gives the court discretion, on revocation and termination of
probation, either (1) to revoke the suspension of sentence and commit the probationer to
prison for the term prescribed in the suspended sentence, or (2) to decline to revoke the
suspension or to order confinement.” (Howard, supra, 16 Cal.4th at p. 1094.) People v.
Medina (2001) 89 Cal.App.4th 318, 323, interpreted Howard to mean, “upon violation
and revocation of probation under such circumstances, the sentencing court retains
discretion to reinstate probation.” (See People v. Latham (1988) 206 Cal.App.3d 27, 29
[“Upon the decision to revoke probation, the trial court had three available options: to
reinstate probation on the same terms; to reinstate probation with modified terms; or to
terminate probation and commit the probationer to prison pursuant to the original
sentence”].) We agree with that interpretation.

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              The trial court’s comments indicate it may have misunderstood the scope of
its discretion. The court interpreted Howard as holding, “once the defendant is found in
violation, you pretty much have to execute that sentence.” That is incorrect. It is
possible, of course, that the court was simply expressing its view that reinstatement of
probation on the same or different conditions was not appropriate based upon the nature
of the violations in this case. But the court’s immediate invocation of the Howard case,
as precluding counsel’s suggestion that probation be reinstated on condition of a 90-day
jail term, suggests otherwise.
              The People contend that even if the court erred, an error is harmless where
“the record reflects that the sentencing court clearly indicated that it would not have
exercised discretion [to reinstate probation] even if it had been aware that it had such
discretion.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) The People contend
certain comments demonstrate this rule applies here.
              For example, in addressing defense counsel’s suggestion that the defense
and prosecution negotiate a new deal (presumably modified probation conditions), the
court stated, “But [defendant’s] track record is not one in which the court is
enthusiastically inviting some sort of a renegotiation here. When you look at the track
record of this case in terms of the alleged probation violations and you look at his prior
record and all things considered, I’ve always got an open mind here, but I am not
enthusiastic about your suggestion . . . .” Elsewhere the court stated, “In this case
violation of any one of these probation violation allegations, in light of the totality of
[the] circumstances in this case, independently supports a two-year state prison
commitment.”
              While these statements suggest the court was convinced the two-year
sentence was proper, in other places the court noted certain mitigating factors. For
example, in discussing the charge that defendant failed to complete the drug
rehabilitation program, the court noted that defendant did not leave the Carson Victory

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Outreach house voluntarily, but instead his parole officer forced him to leave, and his
probation officer ordered him to report for a violation shortly thereafter. The court also
noted that the failure to notify the probation officer of a changed Victory Outreach
residence was not as persuasive as other violations and was a fairly technical violation,
and the failure to pass a drug test was an “afterthought” to the failure to report. Granted,
there was little to say in mitigation of defendant’s failure to report on August 30.
Nonetheless, there is enough uncertainty here that we would be speculating by trying to
predict what the court would have done had it correctly understood the scope of its
discretion. Accordingly, we remand for resentencing.
               Defendant’s second contention is that the trial court improperly considered
four uncharged probation violations in deciding to execute the suspended sentence. He
contends, “There is a realistic possibility that the lower court, if it had exercised . . . its
discretion properly [citation], might well have decided to reinstate probation instead of
executing this prison sentence if it had only considered the four violations actually
alleged in the Petition.” Defendant requests we remand for resentencing. The People
contend defendant waived this argument by failing to object at the hearing and that, in
any event, the error was harmless.
               In his opening brief, defendant requested a new evidentiary hearing, or,
alternatively, resentencing. Defendant did not cite any case ordering a new evidentiary
hearing in similar circumstances, however, and it is unclear to us why it would be
necessary. Defendant does not challenge the sufficiency of the evidence. In People v.
Self (1991) 233 Cal.App.3d 414, 419, where the trial court improperly considered an
uncharged probation violation in addition to a properly charged violation, the court
remanded the case for resentencing. In our view, this is the proper remedy. Defendant
appears to concede this, as in his reply brief he solely requests resentencing. Since we
have already provided that remedy in connection with defendant’s first contention, we
need not further consider his second contention.

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                                      DISPOSITION


             The order executing defendant’s two-year sentence is reversed and the
cause is remanded for resentencing.




                                               IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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