People v. Bengston CA1/3 ( 2015 )

Filed 12/17/15 P. v. Bengston CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A144826
v.
BRET ALCOTT BENGSTON, (Mendocino County
Super. Ct. No. SCUKCR1477300)
Defendant and Appellant.
Bret Alcott Bengston appeals from a judgment entered after his conviction of first-
degree burglary of a dwelling (Pen. Code, §§ 459, 460 1), and the imposition of a
mitigated term of two years incarceration in state prison. Bengston’s appellate counsel
has filed a brief asking us to independently review the record under People v. Wende
(1979) 25 Cal.3d 436 to determine whether any arguable issues are presented. As
required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that
appellate counsel has informed us that she has written to Bengston at his last known
address advising him of his right to file a supplemental brief and Bengston has not filed
such a brief.
Bengston was charged in an information with one count of first-degree burglary,
based on an incident that occurred April 14, 2014, in which he allegedly entered an
inhabited home with the intent to commit a larceny or other felony. Bengston,
1
All further unspecified statutory references are to the Penal Code.
1
represented by counsel from the public defender’s office, pleaded not guilty to the
charge.
Before trial commenced, defense counsel made several in limine motions,
resulting in favorable rulings limiting the admission of certain evidence. At trial, the
evidence included the testimony of the burglary victim, the victim’s mother, and several
law enforcement officers, as well as photographs of the burglarized residence. The
People presented evidence that before the burglary, Bengston had called the victim and
asked for the return of some of his property that was at the victim’s residence. The
victim told him that she was not at home, she would be gone for the next several days,
and he would be allowed to get his property when the victim returned but he was not to
go to the victim’s residence in the meantime. The next day, the victim’s mother saw
Bengston, carrying a full backpack, and trespassing on property near the victim’s
residence. Bengston told the victim’s mother that the victim had given him permission to
be on the property, but the victim’s mother said she owned the property and Bengston
complied with a request that he leave the property. When the victim returned to her
residence, several days later, she found that several of her items had been taken, and that
certain items allegedly belonging to Bengston were at the residence. Bengston was found
in possession of the victim’s credit/debit card, which had not been cancelled but was
connected to a closed bank account; the police recovered no other stolen items from
Bengston. A properly instructed jury found Bengston guilty of first-degree burglary.
At the original sentencing hearing on September 12, 2014, the court found
Bengston was “presumptively ineligible for probation,” because the burglary conviction
was a serious felony and a strike offense, and the court was not aware of any
circumstances that would permit the grant of probation. In so ruling, the court considered
both the circumstances of the current incident, as well as Bengston’s extensive criminal
history including numerous prior misdemeanor and felony convictions, that Bengston had
been on probation or parole continuously since the middle or late 1990’s, and he had
violated either probation or parole terms on numerous occasions. As to the term of
incarceration to be imposed, the court heard argument from counsel, Bengston, and the
2
probation department officer. The court imposed the mitigated term of two years based
“primarily” on Bengston’s “substantial . . . mental health issues.” The court directed
Bengston to pay victim restitution in the sum of $1,378.84, through the restitution
program.
A few weeks later, the court, on its own motion, recalled the sentence by order
filed on September 23, 2014. The recall order directed the probation department to assess
what mental health services had been provided to Bengston within the last 18 months,
determine whether and to what extent Bengston had availed himself of those services,
and determine whether there were any additional, different mental health services
available that might benefit Bengston. The court noted it had not determined whether or
not to place Bengston on probation but would consider all alternatives at the recall
hearing.
On October 24, 2014, the court requested and received Bengston’s assurance that
even though he had only one year left in custody under the sentence just imposed by the
court, he would commit to a three-year probationary term and possibly additional custody
time, if so indicated by a psychiatric evaluation. The court was not convinced that
probation was appropriate but it was “concerned about” Bengston’s mental health issues
and needed to understand them. The court appointed a psychiatrist to examine and
evaluate Bengston. The psychiatrist filed a report indicating Bengston had a dual
diagnosis arising from substance abuse and a mood disorder that appeared to be bipolar in
nature. The psychiatrist believed Bengston would not be a good candidate for
community-based services, but would benefit from residential treatment of one or more
years in a program that accepted dual diagnosis patients, either inside state prison or
outside state prison. During November and December 2014, the court continued the
matter to allow defense counsel to investigate Bengston’s ability to pay for a treatment
program outside state prison.
At a hearing on January 16, 2015, the court ultimately resentenced Bengston after
being informed that Bengston could not arrange sufficient funding for a treatment
program outside state prison. The court again found Bengston was “presumptively
3
ineligible for probation,” and there were no unusual circumstances permitting the court to
grant probation at that time. The court reimposed the mitigated term of two years to be
served in state prison with credit for time served of 458 days.
Bengston’s appellate counsel discovered no issues meriting argument, but notes
that a possible legal issue appears in the record. At the original sentencing and
resentencing hearings, the trial court did not inform Bengston “that as part of the sentence
after expiration of the term [of imprisonment] he . . . may be on parole for a period as
2
provided in Section 3000.” (§ 1170, subd. (c).) However, we conclude there is no legal
issue requiring further briefing. The courts have held that a trial court’s “procedural
oversight” in failing to advise of the parole requirement under section 1170, subdivision
(c), is not subject to relief “without analysis as to whether the defendant was harmed by
the error.” (People v. McMillion (1992) 2 Cal.App.4th 1363, 1370; see Ibid. [an error in
accepting a plea without advising defendant of a possibility of parole term following his
prison term is harmless unless it is reasonably probable defendant would have entered a
different plea had he been properly advised]; see, In re Chambliss (1981) 119 Cal.App.3d
199, 201, 203 [appellate court rejected defendant’s argument that because he was not
advised of possibility of parole term (§ 1170, subd. (c)), his plea bargain should be
construed as calling for parole-free release and specifically enforced as neither
withdrawal of plea or resentencing were meaningful options].) Here, the record
demonstrates no harm to Bengston based on the omitted advisement required under
section 1170, subdivision (c), relative to a possible parole term. At the time of sentence
the trial court was “not empowered to impose a prison sentence without parole;” it had
“no discretion” to determine “whether a parole period shall be served nor to proscribe its
2
Section 1170, subdivision (c), reads: “The court shall state its reasons for its
sentence choice on the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term he or she may be on
parole for a period as provided in Section 3000.” Section 3000 reads, in pertinent part:
“(a)(1) . . . A sentence resulting in imprisonment in the state prison pursuant to Section
1168 or 1170 shall include a period of parole supervision or postrelease community
supervision, unless waived, or as otherwise provided in this article.”
4
duration; that is the province of the Board of Prison Terms.” (McMillion, supra, at
pp. 1368-1369; see § 3000, subd. (a)(1).) Additionally, given the fact that Bengston had
been subject to a parole term after an earlier release from incarceration in state prison, we
can reasonably assume he knew he might be facing the possibility of a parole term after
his release from his current incarceration in state prison. Because Bengston “suffered no
prejudice from the trial court’s failure to advise him” of the possibility of parole, as
required by section 1170, subdivision (c), there is no reason to reverse and remand for
resentencing to allow the trial court to so advise defendant on the record. (McMillion,
supra, at p. 1371.)
DISPOSITION
The judgment is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
People v. Bret Alcott Bengston, A144826
5