P. v. Baker

Filed 7/16/07 P. v. Baker CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

On January 18, 2006, a jury found appellant guilty of possession of a firearm by a misdemeanant (Pen Code, 12021, subd. (c)(1)), but not guilty of possession of a shuriken.[1] (Pen. Code, 12020, subd. (a)(1).)

On February 17, 2006, the trial court suspended imposition of sentence and placed appellant on probation conditioned on him serving a nine-month county jail term.

Appellant filed a timely notice of appeal. On appeal, appellant takes issue with two aspects of his sentence. First, appellant contends that the trial court violated his due process rights when it punished him for pleading not guilty and exercising his right to trial. Second, the trial court erred when it imposed a probation supervision fee as a condition of his probation. For reasons that follow, we agree with both of appellant's contentions. Accordingly, we reverse the judgment below.

Facts

The facts underlying appellant's conviction show that following a domestic altercation, officers were called to appellant's residence. When the officers arrived appellant was not present. Upon learning that appellant was on probation partially conditioned on a no-gun possession requirement, officers asked appellant's girlfriend if appellant had weapons in the house. The girlfriend led officers to the place where appellant stored weapons. Officers discovered samurai swords, decorative knives and a sword that had two daggers and two shuriken attached to it. In addition, officers seized a .22 caliber rifle.

Appellant did not testify at trial.

Sentencing Hearing

At appellant's sentencing hearing, the court indicated that it had read and considered the probation report. Defense counsel requested that the court impose a six-month county jail sentence based on the fact that appellant "does not have much of a criminal record." The prosecutor submitted the matter. The probation report prepared for the hearing recommended that formal probation be granted, but "[a] county jail sentence be imposed," without any recommendation for a specific number of days in custody.[2]

In sentencing appellant, the court announced the sentence as follows. "All right. I've decided to impose a nine-month sentence, and it has a lot to do with the defendant's attitude toward authority and his lack of responsibility in this matter. And I think this is a serious matter." Then, the court went on to say that appellant "was offered six months, I think, initially and refused that offer, and so I think that nine months is an appropriate sentence."

Accordingly, the court placed appellant on probation for three years conditioned on him serving nine months in county jail. The court ordered appellant to report to the probation officer within three days of the grant of probation. Thereafter, the court referred appellant to the Department of Revenue for determination of his ability to pay fines and fees. Among other things, the court ordered appellant to submit his person, place of residence, vehicle, or property to search at any time without a warrant.

Finally, the court imposed a restitution fine of $200, plus a 10 percent administrative fee pursuant to Penal Code section 1202.4, a court security fee and a Criminal Justice Administrative fee. The court ordered appellant to supply swabs and blood specimens. Then, the court ordered appellant "to pay a supervision fee of $40 per month." The court awarded appellant a total of 45 days credit for time served.

Discussion

Nine-Month Jail Term

Appellant asserts that the trial court punished him more severely for exercising his right to trial. Relying on In re Lewallen (1979) 23 Cal.3d 274 (Lewallen) appellant argues that the fact that he entered a not guilty plea and exercised his right to go to trial is completely irrelevant at sentencing. Appellant contends that the facts of this case reveal that the trial court gave consideration to his election to plead not guilty in imposing sentence and that the trial court treated him differently because he asserted his constitutional right.

We agree with appellant that "[i]t is well settled that to punish a person for exercising a constitutional right is 'a due process violation of the most basic sort.' [Citation.]" (Lewallen,supra, 23 Cal.3d at p. 278.) Thus, a court may not treat a defendant more harshly because he or she exercises the right to a jury trial. (Id. at pp. 278- 279.) "That a defendant pleads not guilty is completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand." (Id. at p. 279.)

Nevertheless, it is well settled that "a trial court's discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. [Citation.] . . . Legitimate facts may come to the court's attention either through the personal observations of the judge during trial [citation], or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution." (Lewallen, supra, at p. 281, fn. omitted.) Thus, vindictiveness in sentencing will not be presumed from the mere fact defendant received a harsher sentence after trial than he would have received prior to trial upon entry of a guilty plea. (People v. Szeto (1981) 29 Cal.3d 20, 35.) Appellant has the burden of proving the trial court imposed a harsher sentence as a punishment for his election to go to trial. (Ibid.)

Respondent argues that appellant forfeited his claim that the nine-month sentence was punitive and vindictive by not objecting at the sentencing hearing on those grounds. Assuming for the sake of argument that we were to agree with respondent, in the interest of judicial efficiency, to preclude possible collateral litigation of an ineffective assistance of counsel claim, we choose to analyze the merits of appellant's argument. (See People v. Williams (1998) 61 Cal.App.4th 649, 657.)

In Lewallen, supra, 23 Cal.3d 274, the defendant rejected a proffered plea agreement and was convicted after a jury trial. At sentencing, the trial court determined that the defendant should receive a greater sentence than he would have received under the terms of the rejected plea agreement. On appeal, the Supreme Court focused on comments by the trial judge at sentencing: "First, in response to defense counsel's suggestion that placing defendant on informal probation would suffice, the trial judge responded, 'You mean whether or not there's a disposition or not after a jury trial?' Second, after sentencing, the trial judge stated, 'I think I want to emphasize there's no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody's time, and what's he got to lose. And as far as I'm concerned, if a defendant wants a jury trial and he's convicted, he's not going to be penalized with that, but on the other hand he's not going to have the consideration he would have had if there was a plea.' " (Id. at p. 277.) Thus, Lewallen concluded that the trial court had punished the defendant for exercising his right to jury trial, and vacated the sentence. (Id. at pp. 279-282.)

Accordingly, the question we must answer is whether the sentence appellant received was, at least in part, calculated to punish him for rejecting a plea bargain. Appellant argues that the trial court's statement that he " 'was offered six months, I think, initially and refused that offer, and so I think that nine months is an appropriate sentence' " is evidence that the trial court was basing his sentence at least in part on the fact that he declined the prosecution's plea bargain and demanded a jury trial.

Respondent asserts that the trial court's behavior in this case was "entirely unlike the behavior of the trial court in Lewallen." Respondent contends that here the court merely confirmed that appellant had rejected the plea offer. The court stated the sentence was motivated by legitimate factorsappellant's attitude toward authority and his lack of responsibility. Thus, "[w]hen the trial court's remarks are viewed in context, it is clear the decision to impose probation conditioned on a 9-month county jail term was in no way predicated on appellant's election to forgo the plea offer and proceed to trial."

In light of Lewallen, we must determine if we can give a "rational interpretation" to the court's comments other than that the court was basing appellant's sentence at least in part on the fact that he declined the prosecution's plea bargain and demanded a trial by jury. (Lewallen, supra, 23 Cal.3d at p. 280.) We find we cannot. Although the court noted that before the trial the appellant was offered a six-month county jail sentence but rejected it, the court went on to say "and so I think that nine months is an appropriate sentence." (Italics added.) The only rational interpretation is that the court thought a nine-month sentence was appropriate because appellant had been offered and rejected a six-month sentence.

Furthermore, there is nothing in the record to show that the trial court gained any legitimate facts or new adverse information during the trial or from the probation report that showed appellant's lack of responsibility in this matter or his negative attitude toward authority.

Moreover, with respect to appellant's purported lack of responsibility in this matter, the trial court took a factor that can be used in mitigation at sentencing"[t]he defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process"[3]and used it as a factor to impose a longer sentence than was offered before trial. Thus, implicitly, the trial court was punishing appellant for not taking responsibility for his actions sooner by entering a not guilty plea and demanding a jury trial. " '[B]y increasing the penalty in the case of a defendant who chooses to rely on the presumption of innocence, to put the state to the test of proving its case, and to assert his right to a jury trial, one is in effect penalizing a defendant who asserts rights to which he is entitled.' [Citation.]" (Lewallen, supra, 23 Cal.3d at p. 279.)

Accordingly, we must reverse the judgment below and remand for a new sentencing hearing.

Costs of Probation

Appellant contends that the trial court improperly ordered him to pay probation supervision costs as a condition of probation.

Penal Code section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay "all or a portion of the reasonable cost of any probation supervision," depending upon the defendant's ability to pay.[4] However, Penal Code section 1203.1b does not authorize payment of either costs or fees as a condition of probation. "These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen.Code, 1203.1b, subd. (d).)"[5] (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (People v. Hart (1998) 65 Cal.App.4th 902 (Hart).)

The clerk's minutes and the transcript of the sentencing hearing reflect that the trial court ordered probation supervision fees set at $40 per month. The trial court did not state that the fee was a condition of probation, nor did the court ask appellant if he accepted probation on the condition that he pays such a fee, but the court did order the imposition of the fee directly after reciting other terms and conditions of probation such as restitution fines, which are statutorily required to be included as conditions of probation. (Pen. Code, 1202.4, subd. (m).)

Respondent concedes that payment of a probation supervision fee may not be ordered as a condition of probation, citing Hart, supra, 65 Cal.App.4th 902, 907. Respondent contends, however, that assuming appellant has demonstrated error this court should follow Hart and modify the conditions of appellant's probation to delete the probation supervision fee as a condition of probation, while affirming the trial court's order requiring payment of a probation supervision fee.

To the extent that the record can be interpreted as stating that appellant's probation is conditioned upon payment of a probation supervision fee, and since we must send this case back to the trial court to modify the sentence, we direct the trial court to clarify that the probation supervision fee is not a condition of probation.

Disposition

The judgment is reversed and the case is remanded to the trial court for resentencing. In resentencing appellant, the trial court is directed to institute proceedings in accordance with Penal Code section 1203.1b to determine appellant's ability to pay all or part of the costs of his probation. If the trial court determines that appellant has the ability to pay, the probation supervision fee shall not exceed $40 per month.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] "[A] 'shuriken' means any instrument, without handles, consisting of a metal plate having three or more radiating points with one or more sharp edges and designed in the shape of a polygon, trefoil, cross, star, diamond, or other geometric shape for use as a weapon for throwing." (Pen. Code, 12020, subd. (c)(11).)

[2] Defense counsel had filed a motion to advance sentencing. As a result, the probation report prepared for appellant's sentencing hearing was not a full report. It contained no information about the crime or defendant other than he was to appear on a "Summary Probation matter on April 5, 2006." The report gave the court a recommendation for a local sentence and detailed appellant's custody credits.

[3] California Rules of Court, rule 4.423(b)(3).

[4] In pertinent part, Penal Code section 1203.1b, subdivision (a), provides: "In any case in which a defendant is convicted of an offense . . . in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report . . . ."

[5] Penal Code section 1203.1b, subdivision (d), provides, ". . . Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt."