People v. Reyes CA4/1 ( 2014 )

Filed 10/9/14 P. v. Reyes CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064807
Plaintiff and Respondent,
v. (Super. Ct. No. SCD242302)
SHANE M. REYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for the
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,
Assistant Attorneys General, Melissa Mandel and A. Natasha Cortina, Deputy Attorneys
General, for the Plaintiff and Respondent.
The trial court revoked Shane M. Reyes's probation and sentenced him to the
upper term of four years in state prison for inflicting corporal injury on a cohabitant.
(Pen. Code,1 § 273.5, subd. (a).) It awarded him 256 days of actual credits, with zero
section 4019 credits. It also imposed the probation revocation fine of $240 that had been
previously stayed under section 1202.44, and a parole revocation fine under section
1202.45, which had been stayed unless parole was revoked.
Reyes contends: (1) the trial court erred when it revoked his probation and
sentenced him to prison; (2) the court either misunderstood or abused its discretion in
sentencing him to prison instead of placing him back on probation; (3) he is entitled to
reinstatement of his pre-sentence custody credits because he did not make a knowing and
intelligent waiver of those credits; and (4) the probation revocation restitution fine
imposed under section 1202.44 should be reversed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Underlying Incident
Reyes and M.K. began dating in January 2011. They later lived in a tent under a
bridge in San Diego. On July 26, 2012, Reyes and M.K. drank alcohol and rode their
bicycles to their tent. They argued and Reyes punched M.K., causing her to collapse on
the street. Reyes fled the scene. San Diego Police Officers found M.K. unconscious at
the scene. M.K. suffered a broken nose and jaw, and had two teeth removed.
1 All statutory references are to the Penal Code unless otherwise stated.
2 The facts are taken from the People's trial brief.
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Plea Agreement and Subsequent Proceedings
In November 2012, Reyes pleaded guilty to inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a)) and admitted one great bodily injury enhancement
(§ 1192.7, subd. (c)(8)). In exchange, the People dismissed a count charging Reyes with
assaulting M.K. (§ 245, subd. (a)(4).)
In December 2012, the court stayed imposition of sentence and granted Reyes
three years probation on various conditions, including that he participate in a 52-week
domestic violence program and refrain from knowingly contacting M.K. or attempting to
contact, annoy, or molest her either directly or indirectly.
In April 2013, the court formally revoked Reyes's probation after he failed to
enroll in a domestic violence program. It reinstated probation after Reyes waived good
conduct credits. The court had explained to Reyes: "I want you to waive your good time
credits. I'm going to take 160 days away from you. Do you understand that?" Reyes's
counsel responded, "My client would be willing to waive those credits, your honor."
When the court asked Reyes if he understood that he would not get the credits back,
Reyes responded, "Yes, your honor." The minute order of the proceedings states:
"Defendant waives past/present/future [section] 4019 credits while on probation."
Defense counsel's sentencing memorandum states Reyes had "waived all past, present,
and future [section] 4019 credits at the hearing on April 30, 2013."
At the conclusion of the hearing, the court told Reyes, "I want you to get in
connection with probation and get the information you need to get back into this . . .
[domestic violence] program. I'll recommend an indigent slot for you, as well. And I
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want to set a 60-day review to make sure you're in that program. Do you understand?"
Reyes responded, "Absolutely. Thank you, your honor." The clerk announced that the
review hearing would be held on July 1, 2013, at 9:00 a.m. in department 12. On that
scheduled day, Reyes failed to appear at the hearing and the court revoked his probation.
In September 2013, an investigator from the San Diego Public Defender's office
interviewed Reyes's probation officer, who said he had provided Reyes a six-page list of
domestic violence programs and referrals for an assessment test and a community
resource program that helps probationers fulfill their probation conditions. The probation
officer also informed Reyes of domestic violence programs that work with indigent
probationers and offer three months of free classes.
The court held an evidentiary hearing on allegations that Reyes had violated
probation a second time by maintaining contact with M.K. and failing to appear at the 60-
day review hearing or enroll in a domestic violence program. Two San Diego Police
Department officers testified Reyes continued to maintain contact with M.K. despite the
stay away order. Detective Andrea Wood testified Reyes and M.K. lived with each other
for a month or two around mid-February 2013. Further, Reyes told Detective Wood that
M.K. had been staying with him at his tent in June 2013. Officer Evan Young testified he
saw Reyes and M.K. appearing to loiter on the street. They seemed to communicate with
each other while they were within ten yards of each other. When Officer Young
attempted to contact them, they tried to get away on their bicycles. Officer Young
checked their records and learned that Reyes was prohibited from contacting M.K.
Therefore, police arrested Reyes for violating a temporary restraining order.
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The court revoked Reyes's probation on grounds he had contacted M.K. and failed
to appear at a review hearing or enroll in a domestic violence program. It told Reyes:
"The bottom line to it, you are here for sentencing after revocation. And you have been
then given every break by the system. You got a local custody sentence when you could
have gone to prison back when you initially entered a plea in front of Judge Rogers. He
put you on probation, gave you terms and conditions to comply with. You haven't done
that." Reyes asked the court to grant him probation again: "Can you give me another
chance and I will prove you wrong, your honor?" The court responded: "The answer to
that is no. Probation is a gift from the court. There is no constitutional right to probation
to begin with." At sentencing, Reyes objected to the court's decision to deny him section
4019 custody credits. The court referred Reyes to the case of People v. Johnson (2002)
28 Cal. 4th 1050.3
DISCUSSION
I. Probation Revocation
A. Trial Court Did Not Err In Revoking Probation
Reyes contends the trial court erred when it revoked his probation for contacting
M.K. and failing to appear at a review hearing or enroll in a domestic violence program.
He claims he did not willfully violate any of these probation terms. Specifically, he
3 Johnson holds that a defendant may expressly waive entitlement to credits for past
and future days in custody against an ultimate prison sentence, provided the waiver is
knowing and intelligent. (People v. Johnson, supra, 28 Cal.4th at pp. 1054-1055.)
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argues merely being at a location where M.K. was present did not constitute a willful
violation.
"The fundamental role and responsibility of the hearing judge in a revocation
proceeding is not to determine whether the probationer is guilty or innocent of a crime,
but whether a violation of the terms of probation has occurred and, if so, whether it would
be appropriate to allow the probationer to continue to retain his conditional liberty."
(Lucido v. Superior Court (1990) 51 Cal. 3d 335, 348.) The facts supporting revocation
of probation may be proven by a preponderance of the evidence. (People v. Rodriguez
(1990) 51 Cal. 3d 437, 447.) A court may revoke probation if it has reason to believe the
defendant has violated any of the conditions of his probation. (§ 1203.2, subd. (a);
People v. Galvan (2007) 155 Cal. App. 4th 978, 981.) The evidence must support a
conclusion that the probationer's conduct constituted a willful violation of the terms and
conditions of probation. (People v. Cervantes (2009) 175 Cal. App. 4th 291, 295.)
"Where a probationer is unable to comply with a probation condition because of
circumstances beyond his or her control and defendant's conduct was not contumacious,
revoking probation and imposing a prison term are reversible error." (Ibid.) A trial
court's decision to revoke probation is reviewed for abuse of discretion. (People v. Kelly
(2007) 154 Cal. App. 4th 961, 965.)
Here, Reyes violated probation by contacting M.K. As stated, two police officers
testified regarding continued contact between Reyes and M.K. in February and June
2013. Additionally, the fact Officer Young arrested Reyes for violating a restraining
order shows that he believed Reyes was violating a temporary restraining order that he
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not contact M.K. Having concluded the evidence supports the trial court's decision to
revoke probation on this ground, we need not address Reyes's challenge to the court's
other grounds for revoking probation.
B. Trial Court Did Not Misunderstand Or Abuse Its Discretion
Reyes contends the court abused or was unaware of its discretion when it
sentenced him to prison instead of reinstating and modifying his probation and imposing
further local custody. He maintains the court had discretion to impose further local
custody.
When a court initially suspends imposition of sentence and places a defendant on
probation, but later revokes probation and imposes sentence, "two separate and distinct
decisions are involved in its sentencing choice: (1) [t]o revoke probation; and (2) to
sentence to state prison rather than place the defendant on probation on new or modified
conditions." (People v. Cotton (1991) 230 Cal. App. 3d 1072, 1080-1081.) "Once a
probation violation occurs, the trial court has broad discretion in deciding whether to
continue or revoke probation. [Citation.] However, due process principles require the
trial court to articulate sufficient reasons supporting its revocation of probation." (People
v. Jones (1990) 224 Cal. App. 3d 1309, 1315.)
Sentencing decisions of the trial court are reviewed under the abuse of discretion
standard. (People v. Giminez (1975) 14 Cal. 3d 68, 72.) In the sentencing context, the
trial court abuses its discretion when its sentencing choice " ' "exceeds the bounds of
reason." ' " (People v. Trausch (1995) 36 Cal. App. 4th 1239, 1247.) We assume trial
judges are aware of the law and particularly their sentencing choices. (See Evid. Code,
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§ 664; Thomas v. Thames (1997) 57 Cal. App. 4th 1296, 1308 [it is presumed that the trial
court knows and applies the correct statutory and case law].)
We reject Reyes's contention the court misunderstood its discretion when it
sentenced him to prison instead of reinstating him on probation and imposing further
local custody. He relies on the court's comment: "We put people on probation to give
them a chance to comply. If they don't comply with the terms and conditions of
probation and they have used up their local custody credits, which you have, then you go
to prison." But the court previously recognized that Reyes had been given "every break
by the system," including a prior reinstatement of probation. The court did not
misunderstand its sentencing discretion; rather, it exercised its wide discretion to find
probation was no longer justified due to Reyes's repeated failures to comply with the
terms and conditions of his probation. We discern no abuse of discretion.
II. Knowing and Intelligent Waiver
Reyes contends he is entitled to reinstatement of his pre-sentence custody credits
because he did not make a knowing and intelligent waiver of these credits. He asserts his
waiver applied only to past custody credits, and the trial court did not clearly advise him
he would also waive future custody credits.
A. Applicable Law
To determine whether a waiver is knowing and intelligent, our inquiry should
begin and end with whether the defendant understood he was giving up custody credits to
which he was otherwise entitled. (People v. Jeffrey (2004) 33 Cal. 4th 312, 320.) While
the better practice is for sentencing courts to expressly admonish defendants who waive
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custody credits that such waivers will apply to any future prison term should probation
ultimately be revoked and a state prison sentence imposed, a sentencing court's failure to
include such an explicit advisement will not invalidate an otherwise knowing and
intelligent waiver. (People v. Arnold (2004) 33 Cal. 4th 294, 309.)
B. Analysis
As noted, the court reinstated probation on the condition Reyes waive good
conduct credits, which he agreed to do. Despite Reyes's contention he only agreed to
forfeit credits already accrued, the court's minute order includes an acknowledgment of
the waiver's full consequences. Further, defense counsel's sentencing memorandum
confirms Reyes's understanding that the waiver also applied to future custody credits.
Finally, the court's reference to the Johnson case at sentencing indicated that it
understood Reyes had waived the section 4019 credits. (People v. Johnson, supra, 28
Cal. 4th 1050.) Under these circumstances the court did not err in finding Reyes had
made a knowing and intelligent waiver of his future section 4019 conduct credits.
III. Probation Revocation Fine
Reyes argues that because the court had erred in revoking and terminating
probation and imposing a prison term, the trial court's decision to lift the $240 probation
revocation restitution fine under section 1202.44 and impose a parole revocation fine
should be reversed. We disagree. "Under section 1202.45, a trial court has no choice and
must impose a parole revocation fine equal to the restitution fine whenever the 'sentence
includes a period of parole.' " (People v. Smith (2001) 24 Cal. 4th 849, 853.) Imposing
and staying a probation revocation restitution fine is mandatory when a sentence includes
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a period of probation. Vacating the stay is mandatory upon revocation of probation with
a state prison sentence. (People v. Rodriguez (2012) 207 Cal. App. 4th 1540, 1543, fn. 2.)
The court did not err.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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