Filed 3/6/18 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

LEONZER DELL JONES, JR.,

Defendant and Appellant.


E067929

(Super.Ct.No. FVI1500635)

OPINION


APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Reversed and remanded with directions.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a plea agreement, defendant and appellant Leonzer Dell Jones, Jr., pled no contest to possession of a controlled substance for sale (Health & Saf. Code, § 11378). Defendant also admitted he had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior prison term (§ 667.5, subd. (b)). In return, the remaining charges and allegations were dismissed. The trial court imposed and suspended a seven-year prison sentence, and placed defendant on probation for a period of three years on various terms and conditions, including serving 210 days in county jail and participation in a drug rehabilitation program.
After defendant violated several terms of his probation, the trial court terminated defendant’s probation and sentenced defendant to the previously suspended seven-year prison sentence, despite the probation officer recommending defendant be given another chance at probation. At both the probation revocation hearing and the sentencing hearing, the trial court repeatedly stated it had no discretion but to impose the previously suspended sentence.
Defendant appeals from the order terminating his probation and sentencing him to seven years in prison. Defendant’s sole contention on appeal is that the trial court erred in failing to exercise its discretion when it sentenced him to prison because the court erroneously believed it had no choice but to sentence defendant to the previously suspended seven-year term. Defendant asserts and the People agree this case should be remanded to allow the trial court to conduct an informed sentencing decision. Because the trial court was unaware of its sentencing discretion, the court was unaware it had the option of reinstating probation with the same or modified terms of probation. We agree with the parties that the matter should be remanded to allow the court to exercise its sentencing discretion.
II
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2015, defendant was stopped by the Barstow Police Department for speeding. During a search of defendant’s vehicle, officers discovered methamphetamine, glass pipes, a digital scale, and cash in various denominations. During a subsequent search of defendant’s motel room, officers found small plastic bags, hypodermic needles, and a digital scale.
On March 12, 2015, a complaint was filed, charging defendant with possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 1), transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 2), and possession of drug paraphernalia (Health & Saf. Code, § 11364; count 3). The complaint also alleged defendant had sustained six prior prison terms (Pen. Code, § 667.5, subd. (b)), one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (c)).
On March 19, 2015, pursuant to a negotiated disposition, defendant pled no contest to count 1, and admitted he had suffered one prior strike conviction and one prior prison term. In return, the remaining allegations were dismissed and defendant was placed on probation for a period of three years on various terms and conditions, including serving 210 days in local custody and participation in a drug rehabilitation program. The trial court imposed and suspended a seven-year prison sentence.
On November 2, 2016, a petition to revoke defendant’s probation was filed, alleging defendant had failed to report to his probation officer, failed to report to his rehabilitation treatment program, failed to cooperate with his probation officer in a plan of rehabilitation, and failed to keep the probation department advised of his place of residence.
On December 14, 2016, a contested probation revocation hearing was held. At that time, defendant’s probation officer Denise Valenzuela testified that defendant was in violation of term No. 3 of his probation because defendant failed to report to the probation office on October 7, 2016, and that defendant was in violation of term No. 4 because defendant failed to cooperate in a plan of rehabilitation. Officer Valenzuela explained that on August 10, 2016, defendant reported suffering from a methamphetamine addiction and admitted to using methamphetamine. Defendant stated that he was participating in a treatment program as directed by his parole agent. Officer Valenzuela spoke with defendant’s parole agent on October 18, 2016, and was informed that defendant was not participating in any treatment program. Defendant was also in violation of term No. 7, requiring him to keep probation informed of his residence. On October 25, 2016, Officer Valenzuela went to defendant’s last known address and discovered the apartment had been vacant for two weeks.
At the conclusion of evidence, the trial court found defendant in violation of his probation as alleged in the petition and revoked defendant’s probation. After making its finding, the trial court stated, “The problem that we have with this case was that there was a suspended sentence given at plea, and so there was no options for the Court.” The court also asserted: “I do appreciate the probation officer’s recommendation that the defendant be given another grant of probation. However, the probation officer had the discretion if she felt that this was not a case that’s worth seven years in prison, they could have not filed it. . . . [¶] . . . [¶] So they had the discretion. [¶] At this point, the Court does not have any discretion because it was a suspended sentence. So with the People proceeding, the Court is without a recourse.” The matter was thereafter continued.
Defendant filed two sentencing memorandums with supporting exhibits, on February 6 and 24, 2017, asking the trial court to reinstate probation and allow him to enroll in a drug treatment program.
The continued hearing was held on February 24, 2017. At that time, the trial court reiterated that the court’s “hands are tied.” Following a statement by defendant and argument from counsel, the trial court terminated defendant’s probation and sentenced defendant to the previously suspended sentence of seven years in state prison with credit for time served. In imposing the sentence, the trial court explained: “So I have no authority, even if I wanted to, to do anything but impose the sentence that was previously suspended because it had already been executed. I was not the judge who approved this plea. It doesn’t matter. It’s already been approved.”
On March 3, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant argues the matter must be remanded because the trial court erred by misunderstanding its discretion to consider whether to reinstate him on probation. The People acknowledge that the trial court had discretion to reinstate defendant’s probation on the same or modified terms, or impose the previously suspended sentence. The People also agree that a remand is necessary because the court’s comments show it was unaware of its sentencing discretion. We agree with the parties, and remand the matter to allow the trial court to exercise its sentencing discretion.
“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. (§ 1203.2, subds. (a), (b)(1).) . . . [U]pon 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.] If, instead, the court decides to terminate probation and send the defendant to state prison, . . . [and] if the court originally imposed a sentence and suspended execution of it, . . . the court must order that imposed sentence into effect. [Citations.]” (People v. Bolian (2014) 231 Cal.App.4th 1415, 1420-1421 (Bolian), italics omitted.) “[W]hen a judge suspends execution of a prison term, the message being conveyed is that the defendant is on the verge of a particular prison commitment. Nonetheless, upon violation and revocation of probation under such circumstances, the sentencing court retains discretion to reinstate probation.” (People v. Medina (2001) 89 Cal.App.4th 318, 323; see Cal. Rules of Court, rule 4.435(a) [“When the defendant violates the terms of probation . . . or is otherwise subject to revocation of supervision, the sentencing judge may make any disposition of the case authorized by statute.”].)
Reinstating or refusing to reinstate probation is a discretionary sentencing choice. (See Bolian, supra, 231 Cal.App.4th at p. 1420.) A defendant is entitled to a sentence that reflects the trial court’s exercise of discretion based on legally permissible factors. (See People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) Despite broad sentencing discretion, an abuse of discretion will be found if the trial court “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 825, 847; see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977.) “[W]hen 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. [Citations.]” (Bolian, at p. 1421; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)
In the present matter, the trial court’s comments at the December 14, 2016 probation revocation hearing reflect the court’s understanding that it had only one sentencing choice which was to impose the previously suspended prison term. As noted above, the trial court stated: “The problem that we have with this case was that there was a suspended sentence given at plea, and so there was no options for the Court.” The court also asserted: “I do appreciate the probation officer’s recommendation that the defendant be given another grant of probation. However, the probation officer had the discretion if she felt that this was not a case that’s worth seven years in prison, they could have not filed it. . . . [¶] . . . [¶] So they had the discretion. [¶] At this point, the Court does not have any discretion because it was a suspended sentence. So with the People proceeding, the Court is without a recourse.” In the meantime, defendant had filed two sentencing memorandums asking the court to reinstate probation and allow him to enroll in a drug-treatment program.
When the proceedings resumed on February 24, 2017, the trial court stated: “I think that my hands are tied. This is a case where the defendant entered a plea, and the execution of the sentence was suspended; is that correct?” During the February 24, 2017 hearing, the trial court continued to believe it had no choice but to impose the previously suspended sentence, explaining it had “no authority, even if [it] wanted to, to do anything but impose the sentence that was previously suspended because it had already been executed.”
The trial court’s statements show that it was under the belief the only recourse at sentencing was to terminate probation and impose the previously suspended prison term. Even when the probation officer and defendant requested probation be reinstated, the trial court explained it had no discretion in the matter because it was a suspended sentence. However, “whether the court had previously suspended imposition of a sentence or suspended execution of a sentence, the court still had the authority to choose between reinstatement and termination.” (Bolian, supra, 231 Cal.App.4th at p. 1422.)
As it appears from the trial court’s comments that it misunderstood the scope of its sentencing discretion when it terminated probation and imposed the previously suspended sentence, we will remand the matter to give the court the opportunity to exercise its discretion either to reinstate probation on the same or modified terms or again terminate probation and order execution of the previously suspended sentence. As the court in Bolian stated, “[w]e do not intend to express an opinion on the choice between the two.” (Bolian, supra, 231 Cal.App.4th at p. 1422.)
IV
DISPOSITION
The judgment terminating probation and sentencing defendant to the previously suspended sentence of seven years in state prison is reversed and vacated. The matter is 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 and order execution of the suspended sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



FIELDS
J.