People v. Braud

Filed 11/17/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A158186
Plaintiff and Respondent,
(San Francisco City and County
v. Super. Ct. No. 19010864)
DIMITRI ORLANDO BRAUD,
ORDER MODIFYING
Defendant and Appellant.
OPINION AND DENYING
REHEARING; NO CHANGE IN
JUDGMENT
THE COURT:
IT IS ORDERED that the opinion filed on October 30, 2020, is
modified as follows and the petition for rehearing is DENIED:
1. On page 3, the second sentence of subsection A. of the Discussion
and its accompanying parenthetical are deleted and replaced with
the following sentence: “Without providing an extensive discussion
of the record, we assume Braud did not forfeit his first claim on
appeal (relying on Leiva, supra, 56 Cal. 4th 498) but conclude his
contention has no merit.”
2. On p. 3, in the first sentence of subsection B. of the Discussion,
delete “the trial court imposed an unauthorized sentence because.”
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These modifications do not constitute a change in the judgment.
Dated: _____________ _____________________
SIMONS, ACTING P. J.
A158186
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San Francisco City and County Superior Court, No. 19010864, Hon.
Samuel K. Feng
First Appellate Project, Jonathan Soglin, Executive Director, and
Jeremy T. Price, Staff Attorney, for Defendant and Appellant
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney
General, Rene A. Chacon, Supervising Deputy Attorney General, Julia
Y. Je, Deputy Attorney General, for Plaintiff and Respondent
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Filed: 10/30/20 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A158186
v.
DIMITRI ORLANDO BRAUD, (San Francisco City and County
Defendant and Appellant. Super. Ct. No. 19010864)
Dimitri Orlando Braud appeals from a postjudgment order
reinstating his postrelease community supervision (postrelease
supervision), arguing that the trial court erroneously extended its
termination date. We disagree and affirm.
BACKGROUND
A.
Postrelease supervision is like parole. (People v. Gutierrez (2016)
245 Cal. App. 4th 393, 399.) Offenders who are released from prison
after committing nonserious, nonviolent felonies are subject to
mandatory postrelease supervision provided by the county probation
department for a period generally not to exceed three years. (Ibid.;
Pen. Code §§ 3451, subds. (a), (b), 3455, subd. (e), 3456, subd. (a)(1).) 1
If probable cause exists to believe a person has violated a term or
condition of their supervision, the probation officer may order
1
Undesignated statutory references are to the Penal Code.
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“immediate, structured, and intermediate sanctions” including flash
incarceration in county jail, for no longer than 10 consecutive days.
(§ 3454, subds. (b)-(c); People v. Gutierrez, supra, 245 Cal.App.4th at p.
399.) If intermediate sanctions are no longer appropriate, the
supervising agency may petition the court to revoke, modify, or
terminate supervision. (§ 3455, subd. (a).)
Revocation is a two-step process. First, when presented with
probable cause of a violation, a court may summarily revoke
supervision and issue a bench warrant for the defendant’s arrest. (§
1203.2, subd. (a).) Second, the defendant is entitled to a formal hearing
at which the prosecution must prove the violation and a disposition
may be made. (§3455, subd. (c); Morrissey v. Brewer (1972) 408 U.S.
471, 485, 487-488; People v. Leiva (2013) 56 Cal. 4th 498, 505 (Leiva).)
If the violation is found true, the hearing officer may, among other
options, terminate supervision and order incarceration in jail, or, as
here, it may reinstate supervision and modify the conditions, including
a period of jail incarceration. (§ 3455, subds. (a), (d); People v.
Armogeda (2015) 233 Cal. App. 4th 428, 434.)
B.
In January 2016, Braud was convicted of unlawful possession of a
firearm (§ 29800, subd. (a)(1)) and sentenced to a two-year prison term.
Braud’s sentence was deemed served (§ 2900.5), and he was
immediately released on postrelease supervision. His three-year period
of supervision was originally scheduled to end on January 6, 2019.
Among other terms and conditions, Braud’s postrelease supervision
required that he “not engage in conduct prohibited by law.” (See §
3453, subd. (b).)
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Over the next few years, Braud’s postrelease supervision was
revoked and reinstated three times for violations he admitted: in the
spring of 2016 ; in the summer of 2018; and in the summer of 2019,
which is the violation that led to this appeal. As a result of the first
two violations, the termination date of Braud’s postrelease supervision
was extended to February 7, 2019 and then October 21, 2020.
In July 2019, the San Francisco Probation Department filed the
third petition to revoke Braud’s supervision. The petition alleged
Braud violated the conditions of his supervision by suffering a new
arrest. The trial court summarily revoked Braud’s supervision and set
the matter for a hearing. At the formal revocation hearing, Braud
admitted the violation but reserved his rights to challenge the new
termination date set by the court. The trial court ordered Braud to
serve 58 days in county jail, with credit for 18 days served, and
reinstated postrelease supervision. Over defense counsel’s objection,
the court extended Braud’s postrelease supervision to July 23, 2021.
DISCUSSION
A.
The People assert Braud forfeited his arguments by failing to
raise them below. Because Braud contends his claims fall within the
unauthorized sentence exception to the forfeiture rule, however, we
proceed to the merits. (People v. Anderson (2004) 50 Cal. 4th 19, 26;
People v. Steward (2018) 20 Cal. App. 5th 407, 413, fn. 5)
B.
Braud argues the trial court imposed an unauthorized sentence
because the trial court lacked authority to extend the termination date
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beyond three years from his release date by adding the days when his
supervision was revoked. We disagree.
Section 3455, subdivision (e), imposes a three-year limit on
supervision but includes two exceptions: “A person shall not remain
under supervision or in custody pursuant to this title on or after three
years from the date of the person’s initial entry onto postrelease
community supervision, except when his or her supervision is tolled
pursuant to Section 1203.2 or subdivision (b) of Section 3456.” (Italics
added.) We are only concerned here with the first exception, tolling
under section 1203.2, which applies when a court revokes supervision:
a “revocation, summary or otherwise, shall serve to toll the running of
the period of supervision.” (§ 1203.2, subd. (a).)
Braud acknowledges that the plain language of section 3455,
subdivision (e), appears to allow a trial court to extend supervision
beyond the statutory maximum of three years by adding the days
during which supervision was revoked under section 1203.2. Braud
argues, however, that Leiva, supra, 56 Cal. 4th 498 and People v.
Johnson (2018) 29 Cal. App. 5th 1041 (Johnson) compel us to read the
statute more narrowly. We begin with Leiva.
Leiva concerned the interplay between the first step of the
revocation process—summary revocation based on an alleged probation
violation—and the section 1203.2 tolling provision. The issue was
whether a summary revocation automatically extends the probation
period indefinitely until there is a formal hearing on the alleged
violation.2 (Leiva, supra, 56 Cal.4th at p. 507.) The defendant’s
2 Although Leiva involved probation, the relevant parts of section
1203.2 apply uniformly to both probation and postrelease supervision.
(See § 1203.2, subd. (a).)
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probation had been summarily revoked for a failure to report to his
probation officer that occurred during the probation period, but that
underlying violation was never proved at a formal hearing. (Id. at pp.
502-503.) Instead, years later, the trial court found that the defendant
had violated his probation based on different conduct that occurred
after his probation period had expired. (Id. at p. 503.) The People
argued that the summary revocation triggered the tolling provision of
section 1203.2, thereby automatically extending defendant’s probation
indefinitely. (Id. at pp. 507, 509, 516-517.)
After reviewing the legislative history, the Leiva court held that
tolling at the summary revocation stage does not automatically extend
the probationary period but rather preserves the court’s jurisdiction to
proceed to the second step, a formal hearing to decide whether there
has been a violation during the probation period, after the probation
period has expired. (Leiva, supra, 56 Cal.4th at pp. 514-515.) The
court also observed that an automatic extension would raise due
process concerns by extending a defendant’s probationary term without
notice or hearing and would conflict with statutory limits on the length
of probation. (Id. at p. 509.)
Leiva does not offer Braud much help. Unlike in Leiva, both
Braud’s violation and the revocation hearing took place within the
supervision period (before October 21, 2020); the trial court
unquestionably had jurisdiction. And the trial court extended the
supervision period only after a formal hearing on the violation; so there
is no due process issue. Although this case is about statutory limits on
the length of supervision, section 3455 expressly allows a court to
extend the supervision period beyond the three-year limit. (§ 3455,
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subd. (e).) And section 3455 was not at issue in Leiva because the
statute does not apply to probation.
Indeed, dicta in Leiva cuts against Braud’s position that our
Supreme Court’s interpretation of the section 1203.2 tolling statute
bars an extension of the supervision period in his situation. Although
tolling for a summary revocation does not automatically extend a
probation period, when a court reaches the second step of the
revocation process—the formal hearing on the violation—Leiva says
that the court may choose to extend the probation period: “a trial court
can find a violation of probation and then reinstate and extend the
terms of probation.” (Leiva, supra, 56 Cal.4th at p. 516, italics added.)
Similarly, People v. Tapia (2001) 91 Cal. App. 4th 738, 741 (Tapia),
which Leiva cites with approval, explained that “the period of tolling
can be tacked on to the probationary period if probation is reinstated.”
(Ibid., italics added, disapproved on another point in People v. Wagner
(2009) 45 Cal. 4th 1039, 1061 & fn. 10; see Leiva, supra, 56 Cal.4th at
pp. 515-516 & fn. 5.) In a footnote, Leiva also disapproved another
appellate court’s contrary conclusion “that ‘if probation is reinstated the
period of revocation cannot be counted in calculating the expiration
date.’ ” (Leiva, supra, 56 Cal.4th at p. 518 & fn. 7, disapproving People
v. DePaul (1982) 137 Cal. App. 3d 409, 415.) In short, when the violation
and reinstatement both occur during the probationary period, Leiva
indicates a court may extend it by adding the tolled period of
revocation.
Which brings us to Johnson. Johnson considered the question of
whether section 1203.2 tolling automatically extends a supervision
period at the second step of revocation, the formal hearing. (Johnson,
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supra, 29 Cal.App.5th at p. 1048.) The trial court, in that case,
reinstated supervision and extended the supervision period for the time
during which supervision was revoked by simply accepting a probation
department’s calculation. (Ibid.) Johnson rejected the Attorney
General’s argument that the tolling provision automatically extended
the supervision but held that a trial court, in this situation, has
discretion to extend the time. Because the trial court had not exercised
that discretion, Johnson remanded. (Johnson, supra, 29 Cal.App.5th at
pp. 1048-1050.)
Braud points to the Johnson court’s statement that tolling under
section 1203.2 was intended to preserve jurisdiction for the second step
of the revocation process and that “the Legislature did not intend the
length of [supervision] to be extended due to periods of revocation.”
(Johnson, supra, 29 Cal.App.5th at pp. 1049-1050.) But the court made
these statements in the context of rejecting the Attorney General’s
argument that revocation tolling is automatic and requires no explicit
exercise of discretion. (Ibid.) Like Leiva and Tapia, Johnson itself
concluded a trial court has discretion to extend the expiration date
when supervision is revoked and reinstated; it just does not happen
automatically. (Johnson, supra, 29 Cal.App.5th at p. 1050.)
Finally, Braud points to the Johnson court’s statement that “a
trial court may choose to extend the original expiration date . . . within
the maximum statutory period.” (Johnson, supra, 29 Cal.App.5th at p.
1050, italics added.) The parties in Johnson agreed that the court has
discretion to extend the supervision period “at least to the statutory
three-year maximum.” (Id. at p. 1049.) Thus, Johnson had no need to
resolve any conflict between that limitation and the Legislature’s clear
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statement that a person may “remain under supervision” beyond three
years when supervision has been tolled under section 1203.2. (§ 3455,
subd. (e).) We decline to interpret Johnson as contradicting the plain
language of section 3455, subdivision (e).
C.
Braud asks us to remand for further proceedings, as the Johnson
court did. (Johnson, supra, 29 Cal.App.5th at p. 1050.) Johnson is
distinguishable because, as we explained previously, the trial court, in
that case, did not exercise its judicial discretion but simply accepted the
probation department’s assumption that revocation automatically
extended the supervision period. (Id. at pp. 1044-1045, 1048.)
Here, Braud’s supervision termination date was not
automatically extended. Instead, Braud’s probation officer petitioned
to reinstate supervision with a modified termination date, relying on
tolling for the total number of days Braud absconded or his supervision
was revoked. In response, defense counsel cited Johnson and argued
that the trial court had discretion to decline to extend Braud’s
supervision for time during which his supervision was revoked.
Thereafter, the trial court explicitly ordered the termination date of
Braud’s supervision extended to July 23, 2021.
On this record, we cannot presume that the trial court
misunderstood or abused its discretion when it ordered the termination
of Braud’s supervision extended for periods of time during which his
supervision was revoked. (See People v. Brown (2007) 147 Cal. App. 4th
1213, 1229 [“remand is unnecessary if the record is silent concerning
whether the trial court misunderstood its sentencing discretion”].)
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D.
We need not resolve Braud’s second argument—that “[a] person
serving a period of flash incarceration is in the state’s actual custody”
and cannot have their supervision tolled for any such time under the
absconding exception (§§ 3455, subd. (e), 3456, subd. (b)). He concedes
there is nothing in the record demonstrating that the trial court in fact
extended his supervision termination date to account for any time he
was flash incarcerated. Even if we assume (for the sake of argument)
that Braud is correct about the legal rule he asks us to adopt, he has
failed to meet his burden to affirmatively show error. (See People v.
Davis (1996) 50 Cal. App. 4th 168, 172 [“a trial court’s order/judgment is
presumed to be correct . . . and the appealing party must affirmatively
demonstrate error on the face of the record”].)
DISPOSITION
The challenged postjudgment order, dated July 29, 2019, is
affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
REARDON, J.*
A158186
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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San Francisco City and County Superior Court, No. 19010864, Hon.
Samuel K. Feng
First Appellate Project, Jonathan Soglin, Executive Director, and
Jeremy T. Price, Staff Attorney, for Defendant and Appellant
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney
General, Rene A. Chacon, Supervising Deputy Attorney General, Julia
Y. Je, Deputy Attorney General, for Plaintiff and Respondent
11