People v. Lubich CA2/3 ( 2022 )

Filed 7/19/22 P. v. Lubich CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B312845
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA095699
v.
MARTIN LIBICH,
Defendant and Appellant.
APPEAL from a probation order of the Superior Court of
Los Angeles County, Upinder Kalra and Yvette Verastegui,
Judges. Affirmed and remanded with directions.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and David F. Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
This is defendant Martin Libich’s second appeal stemming
from his convictions for aiding and abetting the stalking and
electronic harassment of his ex-girlfriend and the electronic
harassment of his child. In this appeal, Libich contends the court
erred when it imposed a four-year probation term, arguing that
his felony stalking conviction is subject to the new two-year limit
on probation terms for most felonies under Penal Code1 section
1203.1, subdivision (a), as that statute was amended by Assembly
Bill No. 1950 (2019–2020 Reg. Sess.) (A.B. 1950). Libich also
contends the court violated section 654 when it imposed a four-
year probation term, arguing his maximum possible sentence is
three years. We reject Libich’s arguments but remand the matter
for the court to clarify whether it intended to grant formal or
summary probation.
BACKGROUND2
The People charged Libich with one count of felony stalking
(§ 646.9, subd. (a); count 1) and two counts of misdemeanor
electronic harassment (§ 653.2, subd. (a); counts 3 & 4). The
information named Libich’s ex-girlfriend and mother of Libich’s
child as the victim in counts 1 and 3 and Libich’s child as the
victim in count 4. After a jury trial, Libich was convicted as
charged.
The court (Judge Upinder Kalra) suspended imposition of
sentence for count 1 and placed Libich on five years’ formal
probation. Among other probationary terms, Libich was required
1 All undesignated statutory references are to the Penal Code.
2 A detailed summary of the facts underlying Libich’s convictions is
included in our prior opinion. (People v. Libich (Apr. 22, 2021,
B298370) [nonpub. opn.].)
2
to serve 270 days in county jail, perform 30 days of community
service, and complete a 52-week domestic violence treatment
program followed by psychological counseling for the remainder
of the probation period. For counts 3 and 4, imposition of
sentence was suspended and Libich was placed on three years’
summary probation, to run concurrently with probation for count
1.
After we affirmed Libich’s stalking conviction (People v.
Libich (Nov. 17, 2020, B298370) [nonpub. opn.]), the California
Supreme Court granted his petition for review and transferred
the matter to us with directions to vacate our prior opinion and
reconsider the matter in light of A.B. 1950, which the Governor
signed into law while Libich’s appeal was pending. We vacated
our prior opinion and again affirmed Libich’s stalking conviction,
while vacating the probation order and remanding the matter
with directions for the trial court to reconsider that order under
A.B. 1950. (People v. Libich, supra, (Apr. 22, 2021, B298370).)
The court (now Judge Yvette Verastegui) held the
resentencing hearing over two days in May 2021.3 At the first
hearing, held on May 4, 2021, the court explained that all three of
Libich’s convictions involved domestic violence and were exempt
from A.B. 1950’s new limitations on the length of probation terms
for most misdemeanors and felonies.
At the second hearing, held on May 17, 2021, the court
indicated it intended to place Libich on four years’ probation,
consisting of “three for the initial charge, and the additional year
for the misdemeanor, so three for the felony and one for the
misdemeanor for a total of four.” Defense counsel did not
“disagree[]” with the court’s finding that Libich’s convictions were
3Libich was not present at either hearing, but he was represented by
counsel.
3
exempt from A.B. 1950’s new limitations on probation terms, but
he argued the court was precluded from imposing a consecutive
probation term for either of Libich’s misdemeanor electronic
harassment convictions. The court rejected counsel’s argument,
explaining that it was “looking at the maximum exposure for this
case, and that’s where the court is coming up with the four
years.”
The court then stated, “So at this point, [Libich] will be
placed on four years of summary probation.” The court’s minute
order from the May 17, 2021 resentencing hearing, however,
states that the “[p]robation term will [now] be 4 years formal
probation, which is defendant[’s] maximum sentence pursuant to
Penal Code 1203.1(m)(1).” (Italics added.) The court did not
indicate it was modifying any other terms of Libich’s probation.
Libich appeals.
DISCUSSION
1. Libich’s convictions are not subject to A.B. 1950’s
limitations on the length of probation terms.
Libich asserts the court imposed an “unauthorized
sentence” when it set the length of his probation at four years. In
Libich’s view, the two-year limitation on probation terms for most
felonies under section 1203.1, subdivision (a) applies to his
stalking conviction. We disagree. Because Libich’s stalking
conviction involves domestic violence, it is subject to a minimum
three-year probation term under section 1203.097. Accordingly,
the two-year probation limitation for most felonies does not apply
in this case. (See § 1203.1, subd. (l)(1).)
We independently interpret a statute. (People v. Lewis
(2021) 11 Cal.5th 952, 961.) Our primary task is to determine the
Legislature’s intent in enacting the statute. (People v. Forester
(2022) 78 Cal.App.5th 447, 453 (Forester).) We begin with the
4
statute’s language, giving it a plain and commonsense meaning.
(Ibid.) We don’t consider the statute in isolation, but in its larger
context as part of an overarching statutory framework to
determine the statute’s scope and purpose. (Ibid.) If the statute’s
language is clear and unambiguous, we generally follow its plain
language. (Ibid.) Where more than one reasonable interpretation
of the statute exists, we may consider other aids, including the
statute’s purpose, its legislative history, and public policy, to
reach a construction that most closely adheres to the
Legislature’s apparent intent in enacting the statute. (Id. at pp.
453–454.)
A.B. 1950 amended section 1203.1 to limit the maximum
probation term that may be imposed for most felonies. (Forester,
supra, 78 Cal.App.5th at p. 451.) Before A.B. 1950 went into
effect, courts could impose felony probation for no longer than the
“maximum possible term of the sentence” unless the maximum
possible sentence was “three years or less,” then probation could
continue “for not over five years.” (Former § 1203.1, subd. (a);
Forester, at pp. 451–452.) Now, subject to some exceptions, felony
probation may not exceed two years. (§ 1203.1, subd. (a).) 4 In our
prior opinion, the parties agreed, and so did we, that A.B. 1950’s
new limitations on probation terms apply retroactively to cases
like Libich’s that were not final when the new law became
effective on January 1, 2021.
4Similarly, A.B. 1950 amended section 1203a to limit the maximum
probation term that may be imposed for most misdemeanors to one
year. (§ 1203a, subd. (a); People v. Flores (2022) 77 Cal.App.5th 420,
428.)
5
An exception to section 1203.1’s two-year limit on felony
probationary periods is relevant here. (See § 1203.1, subd. (l).)5
Specifically, the two-year limitation does not apply to any offense
“that includes specific probation lengths within its provisions.” (§
1203.1, subd. (l)(1).)6
Section 1203.097 establishes a specific probation length for
domestic violence offenses: “If a person is granted probation for a
crime in which the victim is a person defined in Section 6211 of
the Family Code, the terms of probation shall include all of the
following: [¶] … A minimum period of probation of 36 months,
which may include a period of summary probation as
appropriate.” (§ 1203.097, subd. (a)(1).) Section 1203.097 does not
apply only to the substantive offense of “domestic violence.”
(Forester, supra, 78 Cal.App.5th at p. 453.) Instead, it applies “ ‘to
any person placed on probation for a crime if the underlying facts
of the case involve domestic violence, even if the statute defining
the crime does not specifically refer to domestic violence.’ ” (Ibid.)
Under Family Code section 6211, a crime involves domestic
violence if the defendant perpetrates abuse against any of the
following persons: (1) a spouse or former spouse; (2) a cohabitant
or former cohabitant; (3) a person with whom the defendant is
having or has had a dating or engagement relationship; (4) a
person with whom the defendant has had a child, where the
presumption applies that the male parent is the father of the
child of the female parent under the Uniform Parentage Act; (5) a
child of a party; and (6) any other person related by
5 In May 2021, when the court held the resentencing hearing, the
language that now appears in section 1203.1, subdivision (l) appeared
in former section 1203.1, subdivision (m).
6 The same exception applies to misdemeanors. (§ 1203a, subd. (b).)
6
consanguinity or affinity within the second degree. (Fam. Code, §
6211.)
In challenging his probation term, Libich doesn’t dispute
that his stalking conviction involves domestic violence. Indeed,
all of Libich’s convictions involve domestic violence because his
victims fall within the scope of Family Code section 6211. In
count 1, Libich was found guilty of stalking his ex-girlfriend, who
is also the mother of his child. (Fam. Code, § 6211, subds. (c) &
(d); see also Forester, supra, 78 Cal.App.5th at pp. 450–451, 458
[felony stalking of defendant’s ex-wife and mother of his child
was a crime of domestic violence].) In counts 3 and 4, Libich was
found guilty of electronically harassing his ex-girlfriend and his
child. (See Fam. Code, § 6211, subds. (c), (d) & (e); see also id., §§
6203 [“abuse” for purposes of domestic violence statute includes
conduct that may be enjoined under Family Code section 6320] &
6320 [court may enjoin the defendant from “stalking” and
“harassing” the petitioning party and other household
members].)7
Instead, Libich contends his stalking conviction is subject
to A.B. 1950’s two-year limitation on the length of probation
terms for most felonies because, although section 1203.097
7 Libich claims the court found his felony stalking conviction was a
crime of domestic violence but did not address whether his
misdemeanor electronic harassment convictions also involved domestic
violence. We disagree. At the first resentencing hearing, when
explaining why Libich’s convictions were crimes of domestic violence
and therefore exempt from A.B. 1950’s new limitations on the length of
probation for most misdemeanors and felonies, the court noted that
Libich committed his offenses against his child and his ex-girlfriend.
Since Libich’s ex-girlfriend was the only victim named in count 1 for
felony stalking, and Libich’s ex-girlfriend and his child were named as
victims in counts 3 and 4 for electronic harassment, it is apparent that
the court found Libich’s convictions for felony stalking and
misdemeanor electronic harassment involve domestic violence.
7
requires a minimum three-year probation term for crimes
involving domestic violence, the statute defining his conviction—
i.e., section 646.9, subdivision (a) for stalking—does not establish
a minimum length of probation. This argument has already been
rejected in at least two published decisions, both of which we
agree with. (Forester, supra, 78 Cal.App.5th at pp. 450–458;
People v. Rodriguez (2022) 79 Cal.App.5th 637, 642–645
(Rodriguez).)
To be sure, section 646.9, subdivision (a) does not establish
a specific probation term for felony stalking. But, as we explained
above, section 1203.097 establishes a minimum three-year
probation term for any offense that involves domestic violence
within the meaning of Family Code section 6211. Thus, when a
crime involves domestic violence, like Libich’s conviction for
stalking, that offense is subject to a specific length of probation—
i.e., a minimum of three years. (Forester, supra, 78 Cal.App.5th
at p. 453 [section 1203.097 applies to a crime where the
underlying facts involve domestic violence, even if the statute
defining the elements of the crime does not specifically refer to
domestic violence].)
As the court in Rodriguez observed, the Legislature often
sets forth the elements of a crime and the penalties attendant to
the commission of that crime in separate statutes, such that
those provisions “ ‘operate in tandem to define the crime and its
consequences.’ ” (Rodriguez, supra, 79 Cal.App.5th at p. 644.) In
other words, an offense is defined not just by the statute that
establishes its elements but also by the statute that establishes
its punishment. (Forester, supra, 78 Cal.App.5th at p. 454 [“Our
case law reinforces the long-standing notion that it is the
combination of a prohibited act and a punishment, in tandem,
that compose an offense.”].) Thus, when sections 646.9 and
1203.097 are read together, it’s clear that stalking involving
8
domestic violence is an “offense that includes specific probation
lengths within its provisions.” (§§ 1203(a), subd. (b) & 1203.1,
subd. (l)(1); Forester, at pp. 455–456.)
Indeed, to adopt Libich’s narrow interpretation of A.B.
1950’s exception to the limits on probation periods would mean
the Legislature intended to implicitly repeal section 1203.097.
That is, since section 1203.097 does not, by itself, define the
elements of any offense, reading section 1203.01, subdivision
(l)(1) to apply only to statutes that establish within their
provisions both the elements of the underlying offense and a
specific length of probation would render section 1203.097,
subdivision (a)’s establishment of a minimum three-year term of
probation for crimes involving domestic violence meaningless.
But nothing on the face of section 1203.01, or in the legislative
history surrounding A.B. 1950’s enactment, indicates the
Legislature intended to repeal section 1203.097, subdivision (a).
(Forester, supra, 78 Cal.App.5th at pp. 456–457.)
As our Supreme Court has instructed, we presume that
when enacting the statute in question, the Legislature did not
intend to repeal another statute by implication. (Even Zohar
Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(2015) 61 Cal.4th 830, 838.) Instead, where it is reasonable to do
so, courts must harmonize statutes, reconcile any inconsistencies
among them, and construe them to give force and effect to all
their provisions. (Ibid.) Reading section 1203.01, subdivision (l)(1)
to apply to crimes that fall within the scope of section 1203.097
harmonizes both statutes. (Forester, supra, 78 Cal.App.5th at p.
456.)
In short, we agree with Forester and Rodriguez that crimes
involving domestic violence are subject to “specific probation
lengths” under section 1203.097. (Forester, supra, 78 Cal.App.5th
at pp. 457–458; Rodriguez, supra, 79 Cal.App.5th at pp. 642–
9
645.) Accordingly, section 1203.1, subdivision (a)’s two-year
probation term limitation for most felonies does not apply in this
case.8
2. Section 654’s bar against multiple punishment does
not apply to the court’s probation order.
Libich next contends the court erred when it set his
probation term at four years based on his stalking conviction and
one of his electronic harassment convictions, claiming the
probation term violates section 654’s proscription against
multiple punishment. This argument is misguided.
Under section 654, “An act or omission that is punishable
in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) The
statute applies not only where there was one “act” in the ordinary
sense, but also where an indivisible course of conduct violated
more than one statute. (Neal v. State of California (1960) 55
Cal.2d 11, 19.)
But section 654 is implicated only if a court imposes
punishment. (People v. Wittig (1984) 158 Cal.App.3d 124, 137
(Wittig).) It is well settled that when a court grants probation, it
does not impose any punishment. (People v. Moran (2016) 1
Cal.5th 398, 402 [“ ‘Probation is neither “punishment” [citation]
nor a criminal “judgment” [citation].’ ”].) Rather, a grant of
8 For the same reasons we just discussed, Libich’s misdemeanor
electronic harassment convictions, each of which involves domestic
violence, are not subject to section 1203a’s one-year probation term
limitation for most misdemeanors. (See § 1203a, subd. (b) [“The one-
year probation limit in subdivision (a) shall not apply to any offense
that includes specific probation lengths within its provisions.”].)
10
probation “is an act of grace and clemency designed to allow
rehabilitation.” (People v. Stender (1975) 47 Cal.App.3d 413, 425,
overruled on other grounds in People v. Martinez (1999) 20
Cal.4th 225, 240.) Thus, an order granting probation ordinarily
“is not within the ambit of the double punishment proscription of
… section 654.” (Stender, at p. 425; see also Wittig, at p. 137
[because probation was granted and punishment was never
imposed, “there [was] no double punishment issue”] .)
When the court entered its initial probation order in April
2019, it suspended imposition of Libich’s sentence and placed him
on five years’ formal probation. At that hearing, the court
declined to make a finding as to whether section 654 prohibited
imposition of multiple terms of punishment for Libich’s
convictions, noting that such an issue “would be something to be
addressed at a future hearing if sentence is imposed.” At the May
17, 2021 resentencing hearing, the court modified only the length
of Libich’s probation term.
Because the court suspended imposition of Libich’s
sentence and granted probation, it has yet to impose any
punishment. Accordingly, any claim that the court’s probation
order violates section 654 is not ripe and, as a result, does not
present a justiciable controversy. (See Wittig, supra, 158
Cal.App.3d at p. 137 [a challenge under section 654 should be
“presented to a court upon any future attempt to impose a double
punishment … in the event of a probation violation”].) We
therefore don’t address this argument any further.
11
3. Remand is necessary to allow the court to clarify the
nature of Libich’s probation.
Although we reject Libich’s arguments challenging the
court’s probation order, we nevertheless must remand the matter
because we are unable to determine whether the court intended
to grant summary or formal probation.
A grant of summary, or informal, probation “ ‘is a
“conditional sentence.” ’ ” (People v. Kaufman (2017) 17
Cal.App.5th 370, 396.) Conditional sentences apply only to
misdemeanors. (Ibid.; see also People v. Glee (2000) 82
Cal.App.4th 99, 104 [“ ‘Conditional sentences are authorized only
in misdemeanor cases.’ ”].) Thus, courts lack the authority to
grant summary probation for a felony conviction. (Kaufman, at p.
396.)
Libich’s stalking conviction is a “wobbler,” which may be
punished by either imprisonment in county jail, by a fine, by
“both that fine and imprisonment,” or “by imprisonment in the
state prison.” (§ 646.9.) In other words, Libich’s stalking
conviction may be punished as either a felony or a misdemeanor.
(Kaufman, supra, 17 Cal.App.5th at p. 396.) Under section 17, “a
felony automatically converts to a misdemeanor when the
judgment imposes a punishment other than imprisonment under
the provisions of section 1170, subdivision (h).” (Kaufman, at p.
396.) Thus, when a court orders summary probation—a form of
probation authorized only for misdemeanors—we generally
construe that order as a classification of defendant’s offense as a
misdemeanor. (Ibid.)
Based on the record before us, it is not clear whether Judge
Verastegui intended to grant formal or summary probation for
Libich’s felony stalking conviction. When Judge Verastegui
reduced the length of Libich’s probation term at the May 17, 2021
hearing, she stated that Libich would be placed on four years of
12
summary probation. Judge Verastegui also scheduled a three-
month progress hearing on Libich’s probation without requiring
him to regularly report to a probation officer, which suggests she
intended to impose summary probation. (§ 1203, subd. (a) [a
conditional sentence is “subject to conditions established by the
court without the supervision of a probation officer” (italics
added)].)
But in the minute order from the May 17, 2021 hearing,
Judge Verastegui ordered Libich’s new probation term to “be 4
years formal probation, which is [Libich’s] maximum sentence
pursuant to Penal Code [section] 1203.1, subdivision (m)(1).” As
we explained above, section 1203.1 establishes the general terms
of probation for felony convictions. (Forester, supra, 78
Cal.App.5th at pp. 451–452.) Thus, the May 17, 2021 minute
order suggests Judge Verastegui intended to impose formal
probation.
In addition, when explaining how she calculated the length
of probation, Judge Verastegui stated it would consist of three
years “for the felony” and one year “for the misdemeanor,”
suggesting she did not intend to reduce Libich’s stalking
conviction to a misdemeanor. And, at the end of that hearing,
Judge Verastegui authorized Libich to travel out of state for
several days, while “order[ing] him to report to his probation
officer within 48 hours of his return,” which also suggests she
intended to impose formal probation. (§ 1203, subd. (a) [formal
probation is subject to supervision by a probation officer].)
Finally, at the original sentencing hearing on April 30,
2019, Judge Kalra placed Libich on formal probation. While
Judge Verastegui stated Libich would be placed on four years of
“summary” probation, she didn’t otherwise indicate at the May 4,
2021 and May 17, 2021 hearings that she intended to reduce the
felony stalking conviction to a misdemeanor or change the nature
13
of Libich’s probation from formal to summary under section 17,
subdivision (b).
Because we are unable to determine whether Judge
Verastegui intended to grant summary or formal probation for
the stalking conviction, we remand the matter to allow the court
to clarify the nature of Libich’s probation. (See People v. Eddards
(2008) 162 Cal.App.4th 712, 717–718 [limited remand
appropriate to allow trial court to clarify terms of its probation
order]; see also People v. Benton (1979) 100 Cal.App.3d 92, 102
[when a sentencing mistake is discovered while the appeal is
pending, the reviewing court “should remand the case for a
proper sentence.”].)9
9In light of our disposition, we need not address Libich’s remaining
arguments.
14
DISPOSITION
The matter is remanded for the court to clarify whether it
granted summary or formal probation for the stalking conviction.
In all other respects, we affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
15