People v. Clemente CA4/1 ( 2022 )

Filed 8/5/22 P. v. Clemente 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079302
Plaintiff and Respondent,
v. (Super. Ct. No. JCF000622)
OSCAR CLEMENTE, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Poli Flores, Jr., Judge. Affirmed.
Shay Dinata-Hanson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
Oscar Clemente, Jr., appeals the judgment sentencing him to prison
after the trial court found he violated the terms and conditions of probation
he had been granted as part of a plea bargain. He contends the evidence was
insufficient to establish the violations, and remand for resentencing is
required based on recent legislation limiting the court’s authority to impose
an upper-term prison sentence. We reject these contentions and affirm the
judgment.
I.
BACKGROUND
A. Grant of Probation
Clemente pled no contest to infliction of corporal injury on a cohabitant
with a prior conviction within seven years. (Pen. Code, § 273.5, subd. (f)(1).)
On June 4, 2018, the trial court suspended imposition of sentence and placed
Clemente on formal probation for three years. The terms and conditions of
probation included requirements, among others, that Clemente: (1) complete
150 hours of community service as directed by the Imperial County Probation
Department (the Department); (2) participate in cognitive and behavioral
counseling and educational programming as directed by the Department;
(3) complete a 52-week certified anger management course as directed by the
Department; (4) abstain from possession or use of alcohol; (5) obey all laws;
(6) report any arrests to his probation officer within 48 hours; and (7) not
drive a motor vehicle with any detectable amount of alcohol in his system.
B. Revocation of Probation
On April 5, 2021, the Department filed a petition for revocation of
probation. (Pen. Code, § 1203.2, subd. (b)(1).) The Department alleged
Clemente violated the probation condition requiring him to obey all laws
when, on June 12, 2020, he committed a hit-and-run resulting in property
damage (Veh. Code, § 20002, subd. (a)) and unlawfully operated a motor
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vehicle without an ignition interlock device (id., § 23247, subd. (e)).1 The
Department alleged two other violations arising out of the hit-and-run
incident: (1) Clemente failed to report the incident to the probation officer
within 48 hours, in violation of the requirement that he report any arrests
within that period; and (2) he smelled of alcohol and had a measurable
amount of alcohol in his system, in violation of the requirement that he
abstain from using alcohol. The Department further alleged Clemente
violated the probation terms and conditions requiring him to participate in
cognitive and behavioral counseling and educational programming, to
complete a 52-week course on anger management, and to perform 150 hours
of community service. The Department asked the trial court to revoke
probation and to sentence Clemente to prison for “the Upper Term” of four
years. (Bolding omitted.)
At the arraignment on the petition, the trial court summarily revoked
probation and set the matter for a formal revocation hearing.
At the hearing, California Highway Patrol (CHP) Officer Joel Hilfiker
testified about the June 12, 2020 traffic incident involving Clemente. On
that date, Hilfiker arrived at the scene of a reported collision and found a
pickup truck with major damage and a power pole sheared off at its base.
The power pole belonged to the county irrigation district. The driver of the
truck was not there. About two hours after arriving at the scene, Hilfiker
received a telephone call from a CHP dispatcher that the driver might be at a
nearby business establishment. Hilfiker went to the establishment and
1 An ignition interlock device “allow[s] a vehicle ignition switch to start
the engine when the breath alcohol concentration test result is below the
alcohol setpoint, while locking the ignition when the breath test results [sic]
is at or above the alcohol setpoint.” (Cal. Code Regs., tit. 13, § 125.00, subd.
(a).)
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found Clemente, who said that he saw an object in the road as he was
driving, unsuccessfully tried to avoid collision with the object, lost control of
the truck, and crashed into the power pole. Clemente said he left the scene of
the collision because he “was trying to get help” and “was scared of law
enforcement.” Hilfiker noticed a “mild odor of an alcoholic beverage”
emanating from Clemente and asked whether he had been drinking.
Clemente responded, “No.” Hilfiker then administered a preliminary alcohol
screening test, which reported a blood alcohol content greater than 0.01
percent. Hilfiker ran Clemente’s record with the Department of Motor
Vehicles and discovered that Clemente was required to have an ignition
interlock device in his vehicle. The truck that Clemente had crashed into the
power pole belonged to his father and had no such device. Hilfiker did not
issue Clemente a citation at that time and allowed him to leave with his
father, who had arrived to pick him up.
Another witness at the hearing was Carlos Contreras, an employee of
GEO Reentry Services (GEO), which provides courses on substance abuse,
anger management, parenting, and cognitive behavior to individuals on
probation. Contreras testified that Clemente had been referred to GEO to
complete substance abuse group sessions on September 11, 2020, but “was
dropped as an abscond” after he failed to attend a session for more than 10
consecutive days. On March 3, 2021, GEO notified Clemente’s probation
officer that Clemente had been terminated from the program. To Contreras’s
knowledge, Clemente did not try to reenroll in the program.
Clemente’s probation officer, Julio Coronel, also testified at the
revocation hearing. Coronel testified he had received a letter from the
provider of the anger management classes that Clemente had been
terminated for nonattendance. Coronel received a similar letter from GEO
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about Clemente’s termination from the substance abuse classes. Coronel had
no record that Clemente completed any hours of community service.
Clemente did not tell Coronel that he (Clemente) had reenrolled in anger
management or substance abuse classes, but a letter from the provider of the
anger management classes stated he had reenrolled. Coronel testified that
probationers must report any contact with law enforcement, not just arrests,
to their probation officers, but Clemente never told him about the June 12,
2020 traffic incident.
After hearing argument from counsel, the trial court announced its
findings. The court stated that ever since Clemente was granted probation,
he had “done absolutely nothing to comply with the terms of probation.” The
court noted the hit-and-run driving charge was still pending and found by a
preponderance of the evidence that Clemente committed the offense, which
the court described as “just one of a number of violations.” The trial court
further found Clemente “made no effort to comply with the terms of the GEO
program, with no excuse.” The trial court stated that although Clemente had
three years to complete the requirements, he did not complete the substance
abuse or anger management classes and did no community service. The
court therefore found Clemente violated the terms and conditions of
probation and set the matter for sentencing.
C. Sentencing Hearing
At the sentencing hearing, Clemente’s counsel offered documents that
purportedly showed Clemente had completed his 150 hours of community
service. The probation officer told the trial court that Clemente had not
notified the Department about the community service, and one of the
organizations at which he served was not on the Department’s list of
approved organizations. Clemente admitted he had neither notified his
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probation officer about the community service at the unapproved
organization nor provided the officer any documentation of such service.
Clemente submitted character reference letters from an employer and a
school superintendent. He and his parents made statements on his behalf,
and his counsel urged the court to reinstate probation.
The prosecutor disputed the truth of the documents Clemente offered to
prove performance of the required community service. The prosecutor also
briefly discussed Clemente’s multiple violations of the terms and conditions
of probation, which the prosecutor argued showed Clemente’s unsuitability
for continued probation.
The trial court considered the character reference letters and the
statements of Clemente and his parents, and reviewed his criminal record
from the probation officer’s report, which included four felonies and 10
misdemeanors. The court stated:
“The record shows a frequency and pattern of criminal conduct
that’s gone unabated. His prior performance has been poor, given
by the number of violations. . . . [I]n the three [prior] felony cases
where he was placed on probation, his performance on probation
was unsatisfactory. He had repeated violations of probation even
earlier . . . . It doesn’t appear that he’s willing to comply with the
terms of probation, especially with the domestic violence, where
he knows clearly what he has to do. There’s no indication that he
has any remorse; reviewing the initial report from this case,
when he was sentenced originally, in June of 2018, he told the
probation officer he did nothing wrong. So all the factors of the
defendant militate against reinstatement on probation. His
record is one of both violence, domestic violence, and alcohol.
And the consistent pattern in his record is that he has not
complied with probation and that he’s picking up new offenses
over and over and over again. And again, this is the
fourth . . . felony conviction. In spite of, I’m sure, him being
lectured by the court before, by his counsel, that he had to
complete the terms of probation, he still didn’t do it; he’s been on
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probation for almost three years and hasn’t even completed the
basic conditions of probation.”
The trial court found “the factors in aggravation outweigh[ed] those in
mitigation,” terminated probation, and sentenced Clemente to prison for “four
years, the upper term.”
II.
DISCUSSION
Clemente contends the trial court abused its discretion by revoking
probation because no substantial evidence supports its finding he had done
“ ‘absolutely nothing’ ” to comply with the terms and conditions of probation.
He also contends recent legislation limiting a court’s authority to impose an
upper-term prison sentence (Senate Bill No. 567) applies retroactively to his
case and entitles him to a resentencing hearing. The People respond there
was substantial evidence that Clemente violated multiple terms and
conditions of probation and the trial court therefore properly revoked
probation. The People agree Senate Bill No. 567 applies retroactively to
Clemente’s case, but argue no resentencing is required because this court can
conclude beyond a reasonable doubt that a jury would have found at least one
aggravating circumstance justifying imposition of an upper-term prison
sentence had the issue been presented to the jury. As we shall explain, we
agree with the People that sufficient evidence supports the trial court’s
revocation of probation, but disagree with the parties that Senate Bill No.
567 applies.
A. Revocation of Probation
We first consider the trial court’s decision to revoke probation. A trial
court may revoke probation “if the interests of justice so require and the
court, in its judgment, has reason to believe” the probationer has violated any
of the terms and conditions of probation or has committed another offense.
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(Pen. Code, § 1203.2, subd. (a).) The prosecutor must prove the facts
supporting revocation by a preponderance of the evidence. (People v.
Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez); People v. Buell (2017) 16
Cal.App.5th 682, 687 (Buell).) On appeal, the court’s factual findings are
reviewed for substantial evidence and will be upheld if they are supported by
evidence, whether contradicted or not, that is reasonable, credible, and of
solid value, and by inferences reasonably drawn from the evidence. (Buell, at
p. 687; People v. Butcher (2016) 247 Cal.App.4th 310, 318 (Butcher).) The
ultimate decision to revoke probation is reviewed for abuse of discretion,
which the party challenging the decision has the burden to establish.
(Rodriguez, at p. 445; People v. Kingston (2019) 41 Cal.App.5th 272, 278
(Kingston); People v. Urke (2011) 197 Cal.App.4th 766, 773.) Clemente has
not met his burden.
Clemente first contends the order revoking probation must be reversed
because the evidence does not support the trial court’s “finding” that he had
done “ ‘absolutely nothing to comply with the terms of probation.’ ” This
contention is based on a mischaracterization of the record. Although the
court made the quoted statement at the end of the formal revocation hearing,
the statement was not a factual finding. Rather, the court used hyperbole to
express dissatisfaction with Clemente’s failure to complete several of the
basic requirements of probation even though he had nearly three years to do
so. Soon after the court made the hyperbolic remark, it listed several specific
ways in which Clemente had failed to comply with probation requirements.
The court mentioned Clemente had attended some anger management
classes but failed to complete the required 52-week program, which was
supposed to be completed within 18 months of the grant of probation by
attending weekly classes (Pen. Code, § 1203.097, subd. (a)(6)). The court also
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mentioned Clemente’s failure to complete the required GEO sessions on
substance abuse and failure to perform any of the required 150 hours of
community service. These comments about Clemente’s specific compliance
failures, not the preceding remark that he had done “absolutely nothing to
comply,” are the trial court’s factual findings on the violations of the terms
and conditions of probation. The court could find it was more likely than not
that the specified violations occurred based on the evidence presented at the
revocation hearing. (See People v. Arriaga (2014) 58 Cal.4th 950, 962-963
[preponderance means fact is more likely true than not true]; Rodriguez,
supra, 51 Cal.3d at p. 447 [preponderance standard applies to proof of facts
supporting probation revocation].) Coronel testified he had no record of any
community service by Clemente and had received notices that he had been
terminated from the anger management and substance abuse programs.
Contreras testified Clemente had been terminated from the substance abuse
program. Hence, substantial evidence supported the trial court’s findings on
these violations.
Clemente complains that in finding the violations discussed above, the
trial court ignored the evidence showing his partial compliance with the
community service and behavioral counseling and educational programming
requirements, and improperly focused on the classes he missed and his
failure to complete the requirements in the nearly three years he had been on
probation. By his own account, however, Clemente was not complying. He
admits he failed to attend the anger management classes weekly and was
terminated for nonattendance. Clemente admits he was terminated from the
GEO substance abuse program for missing too many classes in a row. He
admits that at the formal revocation hearing he presented no evidence of
performance of community service. The documents Clemente belatedly
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offered at the sentencing hearing to prove performance included 121 hours at
an unapproved organization about which he admitted he never told his
probation officer. The trial court reasonably could find such halfhearted
efforts to fulfill the terms and conditions of probation were not the good faith
and diligence the court could demand from a felon to whom it had shown
mercy in the hope of his rehabilitation. (See, e.g., Charles S. v. Superior
Court (1982) 32 Cal.3d 741, 751 [probationer “may be required to make a
good-faith search for employment in order to make reparation”]; People v.
Johnson (1955) 134 Cal.App.2d 140, 143 [granting probation is “act of
clemency” whose “obvious purpose is to secure law compliance through an
attempt at helpful cooperation rather than by coercion or punishment”].)
The community service and behavioral counseling and educational
programming requirements were not the only terms and conditions of
probation the trial court found Clemente had violated. The court also found
he violated the requirement that he obey all laws when he committed a hit-
and-run offense on June 12, 2020. Hilfiker’s testimony at the revocation
hearing provided substantial evidence to support the finding. Hilfiker
discovered a damaged and unattended truck near a power pole sheared off at
its base, and when he located Clemente at a nearby business establishment,
Clemente admitted crashing the truck into the pole and leaving the scene out
of fear of law enforcement. (See Veh. Code, § 20002, subd. (a) [defining
offense]; People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10 [listing
elements of offense].)
Clemente disputes the court’s finding on the hit-and-run offense by
claiming that at the revocation hearing he “presented evidence that he
walked across a field to get help, not run away.” His failure to provide any
record citation to support this claim would allow us to pass it without
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consideration. (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a); People v.
Wilson (1965) 238 Cal.App.2d 447, 464.) We nevertheless reviewed the
record, and the only evidence we found pertinent to this claim was Hilfiker’s
testimony that Clemente said he left the truck after crashing it into the pole
because “he was trying to get help” and “was scared of law enforcement.”
Although the trial court could have inferred from the testimony that
Clemente left the truck to locate the owner of the damaged power pole or to
report the accident to law enforcement, the court also could have inferred he
left to avoid detection. Since the latter inference supports the trial court’s
finding, that is the one we must draw. (See Buell, supra, 16 Cal.App.5th at
p. 687 [appellate court reviewing order revoking probation must resolve all
inferences and evidentiary conflicts in favor of trial court’s decision].)
In finding Clemente committed the hit-and-run offense, the court also
stated, “That’s just one of a number of violations.” Although it is unclear to
what other violations the court was referring, the petition for revocation
alleged others arising out of the hit-and-run incident. Specifically, the
petition alleged Clemente violated the terms and conditions requiring him to
report any arrests to his probation officer within 48 hours and to abstain
from alcoholic beverages. We agree with Clemente he did not violate the
reporting requirement, because Hilfiker did not arrest Clemente for the hit-
and-run offense and instead told him “he was free to leave as his father was
on scene waiting for him.” (See Pen. Code, § 834 [“An arrest is taking a
person into custody”].) Clemente concedes, however, the evidence that he
drove with a measurable amount of alcohol in his system sufficed to establish
a violation of the terms and conditions of probation prohibiting alcohol use.
We accept the concession and conclude the evidence adequately established
multiple violations of the terms and conditions of probation.
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The next question is whether the trial court abused its discretion by
revoking probation based on the violations it found. It did not. “A court
abuses its discretion ‘whenever the court exceeds the bounds of reason, all of
the circumstances being considered.’ ” (People v. Downey (2000) 82
Cal.App.4th 899, 909 (Downey); accord, Kingston, supra, 41 Cal.App.5th at
p. 278.) Our Supreme Court has cautioned that “only in a very extreme case
should an appellate court interfere with the discretion of the trial court in the
matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal.
395, 400; accord, Rodriguez, supra, 51 Cal.3d at p. 443.) This is not such a
case. The trial court found multiple violations of the terms and conditions of
probation, including the failure to perform community service, the failure to
complete anger management and substance abuse classes, and the
commission of a new offense. As we have discussed, substantial evidence
supports the findings. In addition, Clemente concedes he violated the terms
and conditions prohibiting alcohol use. Where, as here, “the record reveals
that a defendant’s violation of the terms of probation was the result of
irresponsible or willful behavior, termination of probation and imposition of a
prison sentence is no abuse of discretion.” (Kingston, at p. 278; see Pen.
Code, § 1203.2, subd. (a) [court may revoke probation if it has reason to
believe probationer violated terms and conditions of probation or committed
new offense]; Butcher, supra, 247 Cal.App.4th at p. 318 [no abuse of
discretion in revoking probation when probationer committed another
crime].)
Clemente nevertheless argues the trial court abused its discretion and
urges us to reverse the judgment and to remand the matter for resentencing.
We must grant such relief, he says, because he did not suffer any new
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“convictions” while on probation and the court relied on some probation
violations that were not supported by the evidence. We are not persuaded.
A conviction of a new offense is not required for a court to revoke
probation granted on a prior offense. (In re Coughlin (1976) 16 Cal.3d 52, 56;
People v. Vanella (1968) 265 Cal.App.2d 463, 469.) “A court is justified in
revoking probation even though the circumstances would not warrant a
conviction.” (People v. Hayko (1970) 7 Cal.App.3d 604, 609.) To revoke
probation, the court need only find by a preponderance of the evidence that
the defendant committed a new offense. (Pen. Code, § 1203.2, subd. (a);
Rodriguez, supra, 51 Cal.3d at p. 447.) As we have explained, the trial court
properly did that here.
Nor is reversal and remand required by People v. Self (1991) 233
Cal.App.3d 414, the only case Clemente cites in support of his request for
such relief. In Self, the trial court found three violations of the terms and
conditions of probation, revoked probation, and sentenced the defendant to
prison. (Id. at p. 416.) The Court of Appeal ruled only one of the violations
could support revocation, but it could not conclude from the record that the
trial court would have revoked probation and sentenced the defendant to
prison based on that violation alone. (Id. at p. 419.) The Court of Appeal
therefore reversed the judgment and remanded the matter for resentencing.
(Ibid.) This case is not comparable to Self. The trial court here expressly
found multiple violations of the terms and conditions of probation, including
failure to perform community service, failure to complete anger management
and substance abuse classes, and commission of a hit-and-run offense. We
have determined the evidence presented at the formal revocation hearing
sufficed to support all of those findings. The only violation alleged in the
petition for revocation for which the evidence was insufficient was that by
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failing to report the hit-and-run incident to his probation officer Clemente
violated the requirement that he report any arrest within 48 hours.
Although the trial court referred to “a number of violations” related to the
hit-and-run incident, it did not specify the failure to report the incident as
one of them. Based on the violations the court did specify, its decision to
revoke probation was not “so irrational or arbitrary that no reasonable
person could agree with it” and thus was not an abuse of discretion. (People
v. Carmony (2004) 33 Cal.4th 367, 377.) “In the absence of any showing that
the court’s decision was arbitrary or capricious, we will uphold it on appeal.”
(Downey, supra, 82 Cal.App.4th at p. 910.)
B. Applicability of Senate Bill No. 567
We next consider whether Senate Bill No. 567 applies and requires
remand for resentencing. Effective January 1, 2022, while Clemente’s appeal
was pending, Senate Bill No. 567 amended Penal Code section 1170 in
several ways. (See People v. Flores (2022) 73 Cal.App.5th 1032, 1038
[describing amendments].) As relevant here, the statute now provides: “The
court may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (Pen. Code, § 1170, subd. (b)(2), as amended by Stats. 2021,
ch. 731, § 1.3.) The amended statute thus makes the middle term the
presumptive prison sentence and allows imposition of an upper-term
sentence only if the defendant has admitted or the factfinder has found the
facts underlying aggravating circumstances. (People v. Whitmore (2022) 80
Cal.App.5th 116, 131.) Appellate courts have applied Senate Bill No. 567 to
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cases not yet final as of January 1, 2022, and vacated sentences and
remanded for resentencing when trial courts had imposed upper-term
sentences based on aggravating circumstances neither found by the jury nor
admitted by the defendant. (People v. Lopez (2022) 78 Cal.App.5th 459, 465,
469; People v. Garcia (2022) 76 Cal.App.5th 887, 902-903.) No such relief is
warranted in this case, however.
Clemente’s claim of entitlement to a remand for resentencing is based
on the false premise that the trial court imposed an upper-term prison
sentence. It did not. The prison terms prescribed as punishment for
infliction of corporal injury on a cohabitant with a prior conviction within
seven years have been two, four, or five years ever since they were added to
the statute in 1999. (Pen. Code, § 273.5, subd. (f)(1), as most recently
amended by Stats. 2016, ch. 50, § 69; former Pen. Code, § 273.5, subd. (e), as
amended by Stats. 1999, ch. 662, § 9.5.) The trial court sentenced Clemente
to prison for four years, which is the middle term and the presumptive
sentence under Senate Bill No. 567. Although in recommending a four-year
prison term the probation officer described it as the upper term in his report
and the trial court described it the same way in imposing that term at the
sentencing hearing, these descriptions were in error. The parties have made
the same error in their briefs on appeal. Because the trial court did not
impose an upper-term prison sentence, although it apparently thought it was
doing so, and actually imposed the presumptive middle-term sentence as
prescribed by Senate Bill No. 567, we need not vacate the sentence and
remand the matter for resentencing. (See People v. Turner (2020) 10 Cal.5th
786, 807 [legally correct ruling will not be disturbed on appeal merely
because made for wrong reason].)
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III.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
BUCHANAN, J.
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