People v. Argenbright CA5 ( 2021 )

Filed 2/10/21 P. v. Argenbright CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077716
Plaintiff and Respondent,
(Super. Ct. Nos. F13909263,
v. F15902718)
PRESTON JAMES FRANKLIN
ARGENBRIGHT, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. David
Andrew Gottlieb, Judge.
Nuttall Coleman & Drandall, Roger T. Nuttall and Jim H. Vorhies for Defendant
and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans, Clara M. Levers and Edrina Nazaradeh, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
In 2014, Preston James Franklin Argenbright pled no contest to various offenses.
The trial court suspended imposition of sentence and placed Argenbright on three years’
probation, with one year of jail time. In 2015, Argenbright violated probation and new
charges were filed. Again, Argenbright pled no contest. The trial court again suspended
imposition of sentence and again placed Argenbright on three years’ probation, with one
year of jail time, split between six months in county jail and six months in a treatment
facility. In 2017, Argenbright was again found in violation and his probation revoked.
After a denial of a third grant of probation, Argenbright was sentenced to state prison.
On appeal, Argenbright contends the trial court abused its discretion in sentencing
him to state prison rather than reinstating probation. He also contends the waiver of his
presentence custody credits was not knowing and intelligent.
We affirm.
FACTUAL AND PROCEDURAL HISTORY
During a violent altercation in September of 2013, Argenbright punched, verbally
abused, and pinned his mother to the ground, temporarily asphyxiating her. He then
struck his mother with a bed post and threatened her with a knife and “a bullet.” As a
result, Argenbright was charged with five felony counts in case No. F13909263 (case No.
1): assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))1 with a serious felony
enhancement (§§ 667, 1192.7), false imprisonment with violence (§ 236), assault by
means likely to produce great bodily injury (§ 245, subd. (a)(4)), assault with a deadly
weapon (§ 245, subd. (a)(1)), and making criminal threats (§ 422), all felony counts.
On March 13, 2014, the trial court granted the prosecution’s motion to amend one
of the assault counts to allege an enhancement for great bodily injury (§ 12022.7, subd.
(a)). Argenbright then pled no contest to that count and admitted the great bodily injury
enhancement, and the trial court dismissed the remaining counts.
On April 11, 2014, the trial court suspended imposition of sentence and placed
Argenbright on three years’ probation. The trial court imposed 365 days in jail, and then
a term of formal probation lasting 36 months. Argenbright was credited with 388 days
for time served; fines and fees were imposed.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On May 1, 2015, Argenbright’s probation in case No. 1 was revoked based on new
charges filed April 30, 2015. After a violent altercation between Argenbright and a
confidential victim (CV), in which Argenbright forced the CV to snort cocaine,
threatened her with death, placed her in a chokehold, punched her and kicked her in her
upper body, Argenbright was charged in case No. F15902718 (case No. 2) with corporal
injury to a cohabitant (§ 273.5, subd. (f)(1)), making criminal threats (§ 422), and assault
with a deadly weapon (§ 245, subd. (a)(1)), with the added allegation of a prior
conviction (case No. 1) for a serious felony (§§ 667, subd. (b), 1170.12, subd. (a)).
At a January 12, 2016, hearing the trial court granted Argenbright’s request to be
released to the Crosby Center, a mental health facility, for a 30-day evaluation. A month
later, Argenbright moved for a 30-day continuance of the status conference to permit
additional testing at the Crosby Center. The court granted the request over the People’s
objection.
On May 5, 2016, Argenbright pled no contest to corporal injury in case No. 2, and
the other two counts were dismissed. Due to the plea, the trial court found Argenbright in
violation of his probation in case No. 1. As a condition of the negotiated settlement,
Argenbright waived “time credits for all purposes.”
At sentencing on June 14, 2016, Argenbright’s probation in case No. 1 was
extended by one year and a one-year term in county jail imposed. On that same day
Argenbright was sentenced in case No. 2. The trial court granted Argenbright’s Romero2
motion, a one-year jail term was imposed, and he was placed on three years’ probation.
The one-year confinement was split into six months in county jail and six months at the
Crosby Center.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3.
On July 19, 2016, Argenbright filed a motion for hearing “TO ENSURE
MEDICATIONS AND TREATMENT ARE BEING PROPERLY ADMINISTERED”
(boldface omitted) by the county jail. The motion was denied.
On September 30, 2016, Argenbright’s motion for early release to attend the
Crosby Center was granted over the People’s opposition. On October 11, 2016, custody
of Argenbright was transferred from the jail to the Crosby Center. While there, he was
required to refrain, among other conditions, from violence and from using illegal drugs.
On February 22, 2017, Argenbright tested positive for methamphetamine. On
March 6, 2017, the director of the Crosby Center e-mailed Argenbright’s probation
officer to report that Argenbright had assaulted two patients at the facility and
Argenbright’s aggressive behavior had caused the director to fear for his life and the
safety of his employees and patients. The director also reported that Argenbright
frequently refused his required medication.
Argenbright denied all allegations that he had violated the conditions of probation.
On March 10, 2017, Argenbright’s probation was revoked, and he was returned to the
county jail.
Over a year later, on May 3, 2018, following a contested probation violation
hearing, the trial court denied a third grant of probation and sentenced Argenbright to two
years in prison in case No. 1, with an additional three years for the great bodily injury
enhancement, for a total of five years. Argenbright was credited with 816 days of work
time credits (§ 2933.1). In case No. 2, Argenbright was sentenced to four years, and
credited with 1694 days of work performance and good behavior credits (§ 4019). The
sentence in case No. 2 was ordered to be served concurrently with the sentence in case
No. 1.
4.
DISCUSSION
I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING
ARGENBRIGHT TO PRISON?
Argenbright contends the trial court abused its discretion in denying him a third
opportunity at probation because the trial court had a “reasonable and humane alternative
in terms of reinstating probation, with placement in a suitable treatment facility” rather
than sentence him to prison. We find no abuse of discretion on the part of the trial court.
Procedural History
Prior to January 2016, probation officials and the trial court operated under the
assumption that Argenbright was not suffering from a mental illness. The probation
report from case No.1 stated Argenbright reported no mental health issues. The
probation report from case No. 2 contains no mention of any mental illness. The first
record of a mental illness diagnosis was in a letter from the Crosby Center, a mental
health treatment facility, dated June 12, 2016, which was the basis for Argenbright’s
second grant of probation. Earlier, on January 12, 2016, Argenbright asked the trial court
to be released to the Crosby Center, a treatment center selected by Argenbright’s mother,
for a 30-day evaluation. The evaluation was extended, over the People’s objection, by 30
days per Argenbright’s request on February 23, 2016. The Crosby Center diagnosed
Argenbright with post-traumatic stress disorder, major depressive disorder, intermittent
explosive disorder, and a traumatic brain injury.
Argenbright returned to jail on March 15, 2016, and on May 5, 2016, pled no
contest to one count in case No. 2, and probation was granted in that case. Probation was
also reinstated in case No. 1. The plea agreement was that Argenbright spend six months
in jail and the second six months in the Crosby Center.
In discussing the agreement, the trial court emphasized to Argenbright that if he
“ever violated the terms and conditions” of his probation, which the trial court granted
after lengthy discussion on the information presented by the Crosby Center, Argenbright
5.
would go to state prison and there would be “no if, ands, or buts about it.” Argenbright
stated that he understood. The trial court went on to state that any further grant of
probation would have to involve “extraordinary circumstances,” and the trial court
discussed the risk of greater time in custody should Argenbright violate this probation.
The trial court explained that, “should there be a case where you end up drinking, using
drugs, whatever it is, and hurting somebody very badly, it would be reflective on this
Court of … taking that extraordinary risk on somebody who has already committed two
very violent offenses.” Argenbright stated that he understood.
After time in the county jail, Argenbright was transferred to the Crosby Center on
October 11, 2016, where he was required to refrain from all violence other than in self-
defense, and from using illegal drugs.
On February 22, 2017, Argenbright tested positive for methamphetamine. A few
weeks later, in March of 2017, the director of the Crosby Center contacted Argenbright’s
probation officers to inform them that Argenbright had assaulted two patients, and his
aggressive behavior had caused the director to fear for his life and the safety of his
employees and patients. The director also reported that Argenbright frequently refused to
take his prescribed medication.
Argenbright’s probation was revoked on March 10, 2017, and he was returned to
the jail. Argenbright denied the allegations that he was terminated from the Crosby
Center for striking another patient and testing positive for methamphetamine.
A contested probation violation hearing was held April 12 and 13, 2018.
Argenbright was found in violation and his probation revoked. At the hearing, a forensic
psychologist testified about the appropriateness of the Crosby Center for Argenbright
(which he stated was not adequate for his needs), the treatment provided at the jail was
more beneficial, and other treatment options available.
6.
Sentencing
At sentencing on May 3, 2018, defense counsel argued against sentencing
Argenbright to prison, stating that the Crosby Center was “not a good match” for
Argenbright, but that he had done well in the treatment he had received at the jail.
The trial court refused to place the blame on the Crosby Center and stated that the
“difference” between others in treatment programs and Argenbright was that “they don’t
continue to use controlled substances, they take their medications as they are directed to
do, and they don’t get involved in assaultive behavior.”
The trial court then declined to reinstate probation and sentenced Argenbright to
prison. In doing so, the trial court spoke to Argenbright directly, stating that case No. 1
was an “extraordinarily serious case,” and he had been granted probation. However,
“[s]hortly thereafter, within a relatively short period of time,” Argenbright committed a
new offense, which was “extraordinarily serious as well.” It had been through
Argenbright’s defense counsel, his family and others, that the trial court was convinced
that, due to Argenbright’s diagnoses of mental trauma, mental illness and substance
abuse, he be allowed an “opportunity to try and handle these issues in an appropriate
way.” While the trial court acknowledged that not every treatment program works with
every individual, the issue was what Argenbright “did in the program”—“continu[ing] to
use controlled substances,” “not taking medications as prescribed” and “continues to
engage in … assaultive conduct.”
For those reasons, the trial court stated that it was not “appropriate” for
Argenbright to be in another program. The court noted that it had to strike the strike
allegation on case No. 2 in order to even allow for probation the second time. The court
stated it was not taking “any pleasure in sending anybody to state prison,” but based on
Argenbright’s conduct in the programs, the court found it inappropriate “to continue on
probation” and sentenced Argenbright to state prison.
7.
Applicable Law and Analysis
“Probation is not a right, but a privilege.” (People v. Bravo (1987) 43 Cal.3d 600,
608.) A trial court’s determination as to whether probation is appropriate for a defendant
is guided by the framework of section 1203. For instance, in case No. 1, Argenbright
committed assault with a deadly weapon with a great bodily injury enhancement,
meaning that probation should only be granted in “unusual cases” where probation best
serves “the interests of justice.” (§ 1203, subd. (e)(3).) While California Rules of Court,
rule 4.413(c)(2)(B) provides that an “unusual case” may exist where a mental condition is
a significant contributing factor to the crime and there is a “high likelihood” that the
individual “would” respond favorably to mental health care and treatment, probation is
still not a right. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)
“A probation violation does not automatically call for revocation of probation and
imprisonment. [Citation.] A court may modify, revoke, or terminate the defendant’s
probation upon finding the defendant has violated probation. [Citation.] The power to
modify probation necessarily includes the power to reinstate probation. [Citations.]
Thus, upon finding a violation of probation and revoking probation, the court has several
sentencing options. [Citation.] It may reinstate probation on the same terms, reinstate
probation with modified terms, or terminate probation and sentence the defendant to state
prison. [Citations.] [¶] If the court decides to reinstate probation, it may order additional
jail time as a sanction. [Citation.]” (People v. Bolian (2014) 231 Cal.App.4th 1415,
1420 (Bolian).) If the court terminates probation, the sentence options depend on
whether imposition of sentence had previously been suspended, or if sentence had been
imposed but execution suspended. In the first situation, the court has full sentencing
discretion; in the second situation, “upon revocation and termination of probation, the
court must order that imposed sentence into effect.” (Id. at pp. 1420–1421.)
“The decision whether to reinstate probation or terminate probation (and thus send
the defendant to prison) rests within the broad discretion of the trial court.” (Bolian,
8.
supra, 231 Cal.App.4th at p. 1421.) “ ‘The discretion of the court to revoke probation is
analogous to its power to grant the probation, and the court’s discretion will not be
disturbed in the absence of a showing of abusive or arbitrary action.’ ” (People v. Urke
(2011) 197 Cal.App.4th 766, 773 (Urke); see also People v. Butcher (2016) 247
Cal.App.4th 310, 318.)
Here, we find no abuse of discretion on the part of the trial court in denying
Argenbright a third probation. According to the director of the Crosby Center,
Argenbright’s psychiatric diagnoses were significant causes of his violent conduct.
Argenbright argues that the Crosby Center was ineffective in helping him with these
violent tendencies and he should be allowed probation and jail time instead of prison, to
aid in his treatment. However, Argenbright fails to acknowledge that he repeatedly
refused to comply with his treatment, both at the Crosby Center and at the jail. He was
not only a violent repeat offender, but he was also violent in treatment to those working
with him and attempting to treat his mental illness.
Argenbright was given another chance when the trial court granted him probation
the second time. At the hearing prior to revocation of Argenbright’s second probation,
the director of the Crosby Center testified that he believed Argenbright was better suited
for placement in a “higher level of restrictive care” than the Crosby Center could provide.
As fully expressed by the trial court, Argenbright’s unwillingness to cooperate in
treatment did not provide the trial court much confidence as to his future ability to
comply, and by extension his suitability for probation.
Argenbright has failed to show that the decision made by the trial court not to
grant probation the third time was irrational or arbitrary, and we reject his claim to the
contrary. (Urke, supra, 197 Cal.App.4th at p. 773.)
9.
II. WAS ARGENBRIGHT’S WAIVER OF HIS TIME CREDITS KNOWING
AND INTELLIGENT?
Argenbright also contends the trial court erred when it accepted his waiver of
presentence time credits, claiming the waiver was not clear, voluntary and informed. We
disagree.
Procedural Background
On May 5, 2016, Argenbright entered a plea of no contest to one count in case No.
2, which served to violate the probation he had been granted in case No. 1. The trial
court reinstated probation, with one of the conditions being that he waive “time credits
for all purposes.”
In discussing the “final negotiated potential settlement,” the following occurred:
“THE COURT: One of the things also that we discussed is waiving time
credits. What that means is this. In the violation of probation, since you
violated the terms and conditions of your probation, the Court would
require you to waive your time credits for all purposes. So you have almost
a year and a half of time credits. Those time credits would be gone on that
case. What that means is … that should you violate probation in the future,
in a year or two years or whatever else, you would not be entitled to those
time credits. Now, you would be entitled to the six month time credits
because I’m sentencing you on that right now.
“[ARGENBRIGHT]: I understand.
“THE COURT: All right. On the new case, I wouldn’t touch your time
credits. Okay. So whatever you’ve got in that, because that’s a new case,
there’s no violations, you would have those time credits.
“[ARGENBRIGHT]: Okay, I understand.
“THE COURT: All right. Any questions of me about anything we just
discussed?
“[ARGENBRIGHT]: No, your Honor.”
The trial court then stated that it would allow Argenbright to have some discussion
with counsel and emphasized that Argenbright need not accept “this deal,” but that
10.
counsel would explain the risks and benefits involved. Argenbright was cautioned to
listen to counsel “very carefully.”
Following a 15 to 20-minute recess, the matter was back on record. At that time,
defense counsel stated that Argenbright would like to enter a no contest plea to the one
count, admit the prior within case No. 1, which was a strike. Defense counsel noted that
the change of plea form indicated that the People would move to dismiss counts two and
three on case No. 2, and the trial court had indicated that it would strike the prior strike,
as well as reinstate probation in case No. 1. Defense counsel stated, “[T]hose are on the
change of plea form. The Court also indicated additional conditions, such as waiving
time credits. And if we can do that orally, we’ll do that and I’ll submit that.”
The prosecutor then stated that she had “calculated actual time as to today” on
case No. 1, as “455 days” and for probation “454” days. The trial court calculated a total
of 909 days, “455 actual, and 454 good/time work time.” The trial court then stated
Argenbright “would need to waive all those time credits.”
The trial court then addressed Argenbright, stating:
“[Y]ou’ve heard what’s been said on the record in regards to your case, not
only in this session but in the previous session when I went through the plea
agreement with you, and I went through all the terms and conditions, the
necessity for the Court to exercise extraordinary discretion. You’ve had
time to go through that with your attorney. [¶] And you understand
everything that’s been discussed in regards to your case?”
Argenbright stated he had. He also agreed that he had placed his initials and signatures
on the plea form, no one had made promises to him or threats against him in connection
with the plea, and he had had enough time to discuss the case with defense counsel.
The trial court then went through various consequences of the plea Argenbright
needed to “understand.” Following Argenbright’s responses, the trial court accepted the
plea.
The trial court then addressed case No. 1, finding that Argenbright had violated
the terms and conditions of his probation. In addressing case No. 1, the trial court
11.
addressed Argenbright stating, “Sir, in that matter you have a total time credits in the
amount of 909 days, 455 actual and 454 good time/work time credits. [¶] Do you waive
those time credits for all purposes?” Argenbright responded, “Yes, your honor.” The
trial court then found “a knowing, intelligent and voluntary waiver of those time credits.”
Applicable Law and Analysis
A defendant committed to state prison is ordinarily entitled to credit against the
prison term for all days spent in custody prior to sentencing, including days spent in jail
or in a residential drug treatment program as a condition of probation. (§ 2900.5; People
v. Jeffrey (2004) 33 Cal.4th 312, 315 (Jeffrey); People v. Johnson (2002) 28 Cal.4th
1050, 1053.) A defendant is also entitled to good time/work time credit. (§ 4019.) “A
sentence that fails to award legally mandated custody credit is unauthorized.” (People v.
Taylor (2004) 119 Cal.App.4th 628, 647.)
“A prisoner may waive presentence credits, including conduct credits, as part of a
negotiated disposition.” (People v. Lara (2012) 54 Cal.4th 896, 903, fn. 3.) Like other
statutory rights, the right to receive presentence credits may be expressly waived “as long
as the defendant’s waiver is ‘knowing and intelligent’ in the sense that it was made with
awareness of its consequences.” (People v. Thurman (2005) 125 Cal.App.4th 1453,
1460; see also People v. Black (2009) 176 Cal.App.4th 145, 154 (Black) [waiver of
section 4019 credits].) A knowing and intelligent waiver of credits bars any future use of
those credits to reduce a prison term in the event probation is terminated and a prison
sentence imposed. (Jeffrey, supra, 33 Cal.4th at pp. 316–317; People v. Arnold (2004) 33
Cal.4th 294, 308–309 (Arnold).) “ ‘The gravamen of whether such a waiver is knowing
and intelligent is whether the defendant understood he was relinquishing or giving up
custody credits to which he was otherwise entitled .…’ ” (Black, supra, at p. 154.) In
other words, a defendant’s waiver of credits “must be clear, voluntary, and informed.”
(People v. Eastman (1993) 13 Cal.App.4th 668, 678.)
12.
Argenbright contends that the only clear, voluntary and informed waiver of his
time credits was at the end of the first discussion where the trial court laid out the terms
of the negotiated settlement and specifically told him he would be required to waive
almost “a year and a half” of time credits, which Argenbright describes as “[n]ot actual
time, but time credits.” As argued by Argenbright, at the time of the admission, he was
entitled to 909 days of time credits, which is almost three years. He argues that the
“almost year and a half,” the trial court amount originally referred to, and which he
knowingly agreed to, reflected approximately his actual time served, not the time credits
he was entitled to. Argenbright acknowledges that he was later advised that he would be
waiving 909 days’ time credits for all purposes, but “that was after the court initially told
him that he would be waiving approximately one and half years of time credits.”
Argenbright argues that the trial court intended to but did not state that he would have to
“waive almost a year-and-a-half of actual time, plus time credits,” and failing to do so
meant he did not knowingly and intelligently waive those credits.
In Urke, supra, 197 Cal.App.4th 766, on which Argenbright relies, the appellate
court found no knowing and intelligent waiver of the defendant’s right to custody credits
under section 2900.5. In that case, in 2004, the defendant was specifically told that he
would be entitled to credit for the 120 days he spent in the county jail in connection with
a subsequent probation violation if he was then sentenced to state prison. The court in
Urke assumed that the trial court meant to say that defendant would not be entitled to
credit for those days. However, given that defense counsel informed the trial court that
he had not explained the “Johnson waiver”3 to defendant, the court could not assume that
defendant understood the trial court to mean the opposite of what it stated. Nor does the
record reveal that this apparent misconception was somehow cleared up by the time
3 “A Johnson waiver is a waiver of a statutory right to credit for time served against
a subsequent county jail or prison sentence pursuant to section 2900.5.” (People v.
Arnold, supra, 33 Cal.4th at p. 307.)
13.
defendant entered his subsequent Johnson waiver in 2007. With respect to that waiver,
defendant was merely asked if he agreed to serve an additional 210 days in the county
jail. The trial court did not advise him that he was relinquishing his right to custody
credit for those days. (Urke, supra, at p. 778.)
We find the facts in Urke distinguishable from those here. In Urke, the trial
court’s admonition led the defendant to believe that he would receive custody credits if
he violated probation. (Urke, supra, 197 Cal.App.4th at p. 778.) Here, the trial court
specifically told Argenbright “you would not be entitled to those time credits.”
And while the trial court initially referenced the time as “almost a year and half,”
that amount was corrected, and the 909 days mentioned twice subsequently. Unlike the
situation in Urke, the timing between the first reference of “almost a year and a half” and
the 909 figure, was separated by a 15 to 20-minute recess, not the three years, as in Urke.
When Argenbright entered his plea, and the trial court informed him he was waiving the
“total time credits in the amount of 909 days, 455 actual and 454 good time/work time
credits,” and was asked again if he waived them for all purposes, Argenbright responded
in the affirmative.
We find sufficient evidence to show that Argenbright knowingly and voluntarily
waived credit and reject his claim to the contrary.
DISPOSITION
The judgment is affirmed.
FRANSON, Acting P.J.
WE CONCUR:
MEEHAN, J.
SNAUFFER, J.
14.