THE PEOPLE, Plаintiff and Respondent, v. BRUCE LEONARD BOLIAN, Defendant and Appellant.
No. B252794
Second Dist., Div. Eight.
Dec. 2, 2014.
231 Cal.App.4th 1415
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, fоr Plaintiff and Respondent.
OPINION
FLIER, J.—Bruce Leonard Bolian appeals from the trial court‘s judgment revoking his probation and executing a previously imposed sentence of five years in state prison. We reverse and remand for the limited purpose of determining whether to reinstate or terminate probation, as it appears the court may have misunderstood the scope of its discretion.
In December 2011, appellant was charged in an amended information with one count of possession of a deadly weapon (a billy club) in viоlation of Penal Code former section 12020, subdivision (a)(1).1 The amended information also alleged appellant had suffered three prior convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served prison terms for eight prior convictions within the meaning of section 667.5, subdivision (b). Appellant pled guilty and admitted two prior convictions within the meaning of section 667.5, subdivision (b). In February 2012, the court sentenced appellant to five years in state prison, consisting of three years for the substantive count and two years for the prior conviction allеgations. The court then suspended execution of the sentence and placed appellant on formal probation for five years. The conditions of his formal probation required that he (1) perform 60 days of Caltrans (California‘s Department of Transportation) community service, (2) not own, use, possess, buy, or sell any controlled substances except with valid prescription, and (3) submit to periodic controlled substance testing when requested.
According to the report of Deputy Probation Officer (DPO) Douglas Morales, appellant tested positive for marijuana in December 2012, January 2013, March 2013, and May 2013. The DPO‘s report recommended the court find appellant had violated probation but modify probation by ordering appellant to complete an outpatient drug counseling program. The court set a probation violation hearing for August 2, 2013, for which appellant did not appear. The court preliminarily revoked appellant‘s probation based on the report that he had violated the terms of his probation and on his failure to appear.
The matter was continued for a contested violation hearing, at which DPO Morales testified. The DPO had previously discussed with appellant that he was not in compliance with the conditions of his probation because he had tested positive for marijuana, and he also had not performed his 60 days of Caltrans community service. Appellant said he could not perform his Caltrans service because he was having back problems and was on heavy medication. As to the marijuana use, appellant submitted a recommеndation for the use of medical marijuana from his doctor. The recommendation was dated March 2, 2013, and was valid for one year. As to appellant‘s nonappearance on August 2, 2013, before that date, appellant had called DPO Morales to say he сould not
The court found appellant violated his probation because he tested positive for marijuana, he failed to appear on August 2, 2013, without excuse, and he failed to complete his community service without excuse after bеing on probation for nearly a year and a half. The court revoked his probation and ordered execution of the previously suspended sentence of five years in state prison.
DISCUSSION
Appellant contends the court misunderstood its legal authority to reinstate and/or modify his probation rather than revoke and terminate it, and we must therefore reverse for the court to properly exercise its discretion. We agree.
1. Pertinent Background
Before DPO Morales testified, defense counsel asked the court to adopt the recommendаtion of the DPO “for some jail time and drug treatment.” The court responded by asking whether the DPO knew at the time of his recommendation that appellant had an executed but suspended sentence. The court pointed out the DPO‘s September 2013 report said, “imposition of sеntence suspended” (capitalization omitted), which was not the same thing as execution of sentence suspended. The DPO‘s earlier report from June 2013 stated something slightly different in regards to appellant‘s sentence; it said, “state prison—suspended” (capitalizatiоn omitted).
After DPO Morales testified and the parties were arguing their positions, defense counsel again asked the court to consider the DPO‘s recommendation:
“[Defense Counsel]: . . . I would just ask the court to consider the fact that [appellant] be found in violation of рrobation but, however, be given some jail time to allow him to understand that he has to comply with strictly—
“The Court: The difficulty is that it will be illegal for me to do, and the probation officer may not be aware of that. I would have to make a de minimis finding to do that. This isn‘t de minimis. And I can‘t. It would be illegal аnd improper. That‘s what an execution of sentence suspended is so a judge doesn‘t come in and undercut another judge. That‘s the problem. He may not be aware of that. I don‘t know.
“[Defense Counsel]: Well, the probation department?
“The Court: Yes. Not to mention the fact that on the form it says the imposition of sentence is suspended. It‘s not. It‘s execution of sentence is suspended. So I don‘t know if this D.P.O. is familiar with what that means and the differences, and if it would have affected his recommendation.
“[Defense Counsel]: Well, I don‘t know if that would be illegal, Your Honor.
“The Court: It is. That‘s why they do an ESS.” The court went on to rеvoke appellant‘s probation and execute the sentence previously imposed, as discussed above.
2. Analysis
A probation violation does not automatically call for revocation of probation and imprisonment. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 795 [277 Cal.Rptr. 85].) A court may modify, revoke, or tеrminate the defendant‘s probation upon finding the defendant has violated probation. (
If the court decides to reinstate probation, it may order additional jail time as a sanction. (Couzens et al., Sentencing California Crimes, supra, ¶ 23:2, p. 23-2 (rel. 5/2014).) If, instead, the court decides to terminate probation and send the defendant to state prison, the sentence the court may impose depends on hоw the court disposed of the case when it first placed the defendant on probation. If the court originally suspended imposition of sentence, the court may, upon revocation and termination of probation, “pronounce judgment for any time within the longest рeriod for which the person might have been sentenced.” (
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. (People v. Medina, supra, 89 Cal.App.4th at p. 323; People v. Covington (2000) 82 Cal.App.4th 1263, 1267 [98 Cal.Rptr.2d 852].) “It is axiomatic that when an issue entrusted to the trial court‘s discretion is properly presented to the court for decision, the court must exercise its discretion: In such a case a statement or other evidence that the court believes it has no discretion, but must rule in a certain way, indicates an error so fundamental as to be said to amount to a refusal to exercise jurisdiction.” (People v. Angus (1980) 114 Cal.App.3d 973, 987 [171 Cal.Rptr. 5].) “Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority сannot exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [54 Cal.Rptr.3d 887], quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [193 Cal.Rptr. 882, 667 P.2d 686].)
Therefore, when the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion. (People v. Brown, supra, 147 Cal.App.4th at p. 1228; People v. Medina, supra, 89 Cal.App.4th at p. 323.) We need not remand, however, when the record indicates the court was aware of its discretion or the record is merely silent on whether the court misunderstood its sentencing discretion. (People v. Brown, supra, 147 Cal.App.4th at pp. 1228-1229.)
Here, the record discloses the court may have believed it lacked discretion to reinstate appellant‘s probation on modified terms. DPO Morales recommended such a disposition. The DPO recommended modifications so that appellant serve some jail time (which would have been permissible as a sanction) and participate in a drug counseling program. When defense counsel asked the court to consider using the DPO‘s recommendation, the
In sum, we think a fair reading of the court‘s comments demonstrates it was not aware of its discretionary power to reinstate and modify probation, even if it found violations and revocation appropriate. Accordingly, we shall remand to give the court the opportunity to exеrcise its discretion. Nothing in this opinion should be construed as an indication of this court‘s position on reinstatement versus termination of probation. We do not intend to express an opinion on the choice between the two.
DISPOSITION
The judgment revoking and terminating appellаnt‘s probation is reversed. Appellant‘s sentence is vacated and the matter remanded to the trial court with directions to exercise its discretion whether to reinstate probation (either on the same terms or on modified terms) or terminate probation.
Rubin, Acting P. J., and Grimes, J., concurred.