People v. Stutsman CA1/3 ( 2022 )

Filed 12/13/22 P. v. Stutsman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A164693
v.
TYLER STUTSMAN, (Lake County
Super. Ct. No. CR955880)
Defendant and Appellant.
In January 2020, Tyler Stutsman was convicted of felony assault
pursuant to a plea agreement. (Pen. Code, § 245, subd. (a)(4).)1 The present
appeal is from a judgment imposing a previously suspended sentence due to
Stutsman’s probation violation. Appellant’s counsel has filed a brief that
raises no issue for appeal and asks this court for an independent review of
the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We
affirm.
SUMMARY OF RECORD ON APPEAL
On October 10, 2019, Clearlake Police Officer Steven Diaz was
dispatched to the home of Champagne L., in response to a report that a
bicyclist had been hit by a vehicle. A neighbor who witnessed the incident
Statutory references are to the Penal Code unless otherwise
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indicated.
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reported that the victim, G.G., was riding his bicycle near Champagne’s
residence when Stutsman drove down the street in his truck. The witness
recognized Stutsman as the driver because Stutsman used to live with
Champagne and visited her frequently. The witness reported that Stutsman
and G.G. had “a beef over Champagne,” and when G.G. saw Stutsman
coming, he moved behind a trailer that was parked in front of the residence.
After passing the trailer, Stutsman “accelerated at [an] approximately 45-
degree angle and hit [G.G.],” who “went into the air and landed on his head
and neck when he hit the ground.”
At the scene of the incident, Officer Diaz found skid marks that started
on the street and continued at a 45-degree angle to the gravel area behind
the trailer where G.G.’s bike was lying. G.G. was transported to the hospital
because of his injuries. His account of the incident was consistent with the
witness’s report. G.G. reported that he was on his way to visit Champagne,
and that he tried to get out of the way when he saw Stutsman driving toward
him. Stutsman “continued to rev up” his engine as he ran into G.G., then
reversed direction and fled.
On November 15, 2019, Diaz went to Champagne’s residence in
response to a call that G.G. and Stutsman were having a verbal altercation.
G.G. left the residence before Diaz arrived. Stutsman gave a statement after
receiving his Miranda warnings. He claimed that he did not know anything
about the October 10 incident; that he left town on October 9 to stay with his
mother for three weeks; and that his truck was stolen while he was away.
Another officer contacted Stutsman’s mother, who did not corroborate her
son’s report.
Stutsman was charged with felony assault with a deadly weapon
(§ 245, subd. (a)(1)) and a misdemeanor violation of Vehicle Code section
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20001, subdivision (b)(1), for leaving the scene of an injury accident. He was
held to answer on both charges based on the preliminary hearing testimony
of Officer Diaz.
On January 14, 2020, the parties informed the court they reached a
plea agreement pursuant to which Stutsman would plead no contest to an
amended charge of assault with force likely to cause great bodily injury
(§ 245, subd. (a)(4)) and would be placed on three years’ probation, with a
condition that he serve 364 days in jail. The court accepted Stutsman’s plea,
found that he violated probation in two other cases by committing his current
offense, and released him from custody pending sentencing pursuant to a
“Cruz waiver.”2
On February 10, 2020, Stutsman’s case was called for pronouncement
of judgment and sentencing. The court dismissed the misdemeanor charge,
and pronounced the judgment of the court that Stutsman was guilty of felony
assault. Stutsman waived arraignment for sentencing and stipulated to the
admission of a presentence report prepared by the Lake County Probation
Department (the department). According to the report, Stutsman has prior
misdemeanor convictions for drug possession, petty theft, and infliction of
corporal injury on a cohabitant. He admitted daily use of marijuana and
methamphetamine, but denied having a substance abuse problem. A risk
2 Once a plea agreement is approved by the court, the defendant may
not be sentenced to a punishment that is more severe than specified in the
plea, and if the court withdraws approval of the agreement, the defendant
may withdraw the plea. (§ 1192.5) People v. Cruz (1988) 44 Cal.3d 1247holds that a defendant who fails to appear for sentencing does not lose the
protection of section 1192.5 but may expressly waive those rights, so that in
the event of a willful failure to appear, the court may withdraw approval of
the plea agreement and impose a sentence in excess of the bargained for
term. (Id. at p. 1253–1254.)
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assessment showed a high risk of reoffending and committing additional
crimes in the future.
The department reported that the plea agreement for a grant of felony
probation “does not appear appropriate.” It did not appear that Stutsman
was eligible for probation because he used his vehicle as a deadly weapon,
and this was not an unusual case in which a grant of probation would serve
the interests of justice. (See § 1203, subd. (e)(2).) Even if Stutsman was
found eligible, the department opined he was not a good candidate for
probation. If the court chose to deny probation, the department
recommended that an upper terms sentence of four years in state prison
would be appropriate, noting that “the factors in aggravation significantly
outnumber and outweigh the lack of factors in mitigation.” Despite opposing
probation, the department reported that it would honor the plea agreement
by recommending that Stutsman be placed on formal probation for three
years, subject to conditions.
The trial granted probation based on the plea agreement, but cautioned
Stutsman that “this was a very close call for the Court.” The court found that
the circumstances would justify denying probation, citing Stutsman’s record
of several misdemeanors, which included committing domestic violence
against Champagne L., facts relating to the current offense, including that
Stutsman was traveling at 20 miles per hour when he struck a man on a bike
because he believed the victim was dating Champagne, and the fact that
Stutsman was on probation when he committed the current offense. But, the
court also found unusual circumstances to justify granting probation because
Stutsman was 24 and, aside from the domestic violence, his criminal record
was relatively minimal before committing the current offense.
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The court suspended imposition of sentence and placed Stutsman on
three years’ formal probation, with conditions that included serving 364 days
in local custody, with credit for 121 days. Stutsman was ordered to begin
serving his jail term on April 15, 2020. Subsequently, his surrender date was
postponed until January 6, 2021, due to the COVID pandemic.
On January 12, 2021, the department filed a petition to revoke
Stutsman’s probation. It alleged that on January 6, Stutsman called his
probation officer from Hill Road Jail and asked if his surrender date could be
extended to a later date. The officer instructed Stutsman to surrender
himself and then contact his lawyer. Instead, he fled the facility while staff
were processing his intake. An arrest warrant issued and after Stutsman
was taken into custody, he denied the probation violation.
On June 8, Stutsman admitted his probation violation and agreed to
waive his accrued custody credits.3 Probation was reinstated with
modifications, including that Stutsman was to serve 360 days in custody,
with 180 days to be served in jail, while the balance could be served at a
residential treatment program.
On October 22, 2021, the department filed another petition for
revocation of probation. According to the petition, Stutsman was admitted to
the Salvation Army’s residential treatment program in early September, but
left the program on October 6 without authorization. After an arrest warrant
3 “[A] defendant can expressly waive entitlement to credits for time
served.” (People v. Johnson (2002) 28 Cal.4th 1050, 1052.) This so-called
Johnson waiver “enables a sentencing court to reinstate a defendant on
probation after he or she has violated probation one or more times,
conditioned on service of an additional county jail term, as an alternative to
imposing a state prison sentence.” (People v. Jeffrey (2004) 33 Cal.4th 312,
315.) The waiver “applies to any future use of such credits should probation
ultimately be terminated and a state prison sentence imposed.” (Ibid.)
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was issued, Stutsman appeared on November 15. The matter was continued
until November 30 and another warrant issued when Stutsman failed to
appear, although the bail forfeiture was subsequently set aside, bond was
reinstated, and Stutsman was released from custody pending a contested
hearing on the revocation petition.
The contested hearing was held on February 1, 2022. The probation
officer testified that Stutsman was referred to the Salvation Army in Lodi,
entered treatment on September 7, but then walked away from the program
on October 6. Stutsman did not contact the department to request another
program and did not call his probation officer until after the revocation
petition was filed. Stutsman testified that he left the treatment program
because staff would not agree to take him to court hearings in a family law
matter involving his son. He explained that his son is important to him, so
he had to “get that figured out,” which meant leaving the program. Then he
looked for another program but had issues with his Medi-Cal benefits.
Eventually, he found a program in Mendocino and was trying to get his
benefits transferred. He had been so busy since leaving the treatment
facility, he did not even think to call his probation officer.
The trial court found Stutsman committed a willful violation of
probation by intentionally leaving the program without obtaining permission
or contacting his probation officer to seek assistance. But in light of his
explanation, the court requested further evaluation from the department.
The matter was continued until February 28 for sentencing, with the
understanding that if Stutsman got into a treatment program before the next
hearing, he would be permitted to stay there.
At the February 28 hearing, the parties stipulated to admitting the
supplemental probation report into evidence. The department reported that
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Stutsman had disregarded conditions of his probation, and directives of the
department and the court, and that his overall performance on probation was
poor. “He has absconded from supervision, failed to report monthly on a
regular basis, failed to complete his treatment program/jail sanction and
continues to commit new law violations,” the report states. He was “given
numerous opportunities to rehabilitate and make positive choices; however,
failed to do so.”
The department recommended that probation be permanently revoked
and that the court impose a midterm sentence of three years in state prison
for the felony assault conviction. It observed that the record would support
an upper term sentence but opined that a midterm sentence was appropriate
“based on current law.” The People concurred with the recommendation.
The defense requested that the court restore Stutsman to probation on some
basis, arguing that he made a good faith effort to get into treatment.
Stutsman addressed the court directly, reporting that he located a program
in Santa Rosa with an available bed and planned to go there the next day.
After the matter was submitted, Stutsman and an unidentified zoom
speaker repeatedly interrupted the court as it announced Stutsman’s
sentence. The court found there was a long history of failing to comply with
probation, which included absconding, failing to report, and failing to
complete programs. The circumstances surrounding the felony assault were
as serious as other instances of the same crime, the crime was not committed
because of an unusual circumstance, and Stutsman’s convictions were
numerous and increasingly serious. Despite these facts, he was “given a
chance at probation” and “failed to comply with virtually any aspect of it.”
Stutsman was sentenced to state prison for the middle term of three
years. The court did not impose fines and fees. It awarded actual time and
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conduct credits. Because Stutsman was not currently in custody, he was
ordered to report at the Lake County jail on March 3, 2022. Stutsman’s
request to postpone his surrender date was denied.
DISCUSSION
The Wende brief filed by appellant’s counsel draws attention to one
unbriefed issue that “ ‘might arguably support the appeal.’ ” (Quoting Anders
v. California (1967) 386 U.S. 738, 744.) Specifically, counsel considered
whether the trial court abused its discretion by refusing to reinstate
Stutsman on probation, but concluded that the issue did not warrant briefing.
Based on our independent review, we agree.
As a preliminary matter, the finding that Stutsman violated probation
is subject to review for substantial evidence. (People v. Butcher (2016) 247
Cal.App.4th 310, 318 (Butcher).) The record shows that Stutsman admitted
that he left his treatment program without permission in violation of an
express term of his probation, and that this term was imposed in response to
a prior violation that Stutsman also admitted. Thus, the finding that
Stutsman committed a second willful violation of probation is supported by
substantial evidence.
The trial court’s decision not to reinstate probation is subject to review
for abuse of discretion. (Butcher, supra, 247 Cal.App.4th at p. 318; People v.
Downey (2000) 82 Cal.App.4th 899, 909 (Downey).) The decision “ ‘will not be
disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary or capricious manner.’ . . . We will not interfere
with the trial court’s exercise of discretion ‘when it has considered all facts
bearing on the offense and the defendant to be sentenced.’ ” (Downey, at
pp. 909–910.)
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Here, the record shows that the trial court considered all relevant facts
and that its decision was neither arbitrary nor capricious. The initial grant
of probation was a close call, as Stutsman was advised when he was afforded
the opportunity to avoid prison time. Stutsman squandered that opportunity
by repeatedly violating probation, failing to report, absconding, and most
importantly leaving residential treatment. Stutsman did not seek advice or
assistance from the department before making the unilateral decision to
leave that program.
At the sentencing hearing, Stutsman argued that probation should be
reinstated because of his good faith effort to get into a program. The trial
court did not abuse its discretion by rejecting this claim. At the revocation
hearing, Stutsman was given another opportunity to get into treatment based
on his representation that he had been conditionally accepted at a program in
Mendocino. And yet, at the sentencing hearing, he had only a vague plan to
visit a program in Santa Rosa.
Our independent review discloses no other issue requiring further
briefing. We note that although Stutsman was 24 when he committed the
current offense, he received a midterm rather than a lower term sentence.
(See § 1170, subd. (b)(6)(B).) This sentencing decision raises no issues for
further briefing. The department identified multiple aggravating
circumstances, and no mitigating circumstances, and the record contains
substantial evidence that imposition of a lower term would be contrary to the
interests of justice. Aside from his sentence, Stutsman was not required to
pay fines or fees, and his custody credits reflect the fact that he entered a
Johnson waiver when probation was reinstated after a prior violation.
Appellant was appraised of his right to file a supplemental brief and to
request to have his counsel relieved, but he did neither. (See People v. Kelly
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(2006) 40 Cal.4th 106, 110.) Following Wende guidelines, we have conducted
an independent review of the record summarized above and conclude there
are no meritorious issues to be argued on appeal.
DISPOSITION
The judgment is affirmed.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
People v. Stutsman (A164693)
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