P. v. Landon
Filed 6/11/13 P. v. Landon CA1/2
Opinion on remand from the Supreme
Court
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BRENDA LOUISE LANDON,
Defendant and Appellant.
A123779
(Mendocino
County Super. Ct,
Nos.
SCUKCRCR0781676 &
SCWLCRCR0885031)
On August 14,
2008, defendant pleaded guilty to driving under the influence (DUI) with a
blood alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd.
(b)); she admitted four prior DUI convictions.
Subsequently, defendant was arrested for another DUI and, on September
18, 2008, she pleaded guilty to a DUI with prior convictions within 10 years
(Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)) and admitted committing the
crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).
of these cases and sentenced defendant to state
prison for a total of four years eight months.
Defendant
appealed, and urged us to remand the matter to the trial court for a new
violated her due process rights under the Fourteenth
Amendment when it found her statutorily ineligible for probation under
Penal Code section 1203, subdivision (e)(4).
We rejected this request for remand for a new sentencing hearing because
defendant failed to establish prejudice.
While the appeal
was pending, the Legislature amended section 4019, which changed the
calculation of presentence conduct credit.
Defendant filed a motion in the trial court requesting that her
presentence conduct credits be calculated in accordance with the amended
statute. The lower court denied this request,
finding that the amended statute did not apply retroactively. Defendant appealed from this ruling.
In
our opinion filed April 13, 2010, we applied the amended statute
retroactively. The California Supreme
Court granted the People’s petition for review.
In People v. Brown (2012) 54
Cal.4th 314, the Supreme Court held that the amendment is applicable
prospectively only and, therefore, defendant was not entitled to benefit from
the amendment to section 4019.
On
May 15, 2013, the Supreme Court transferred the present case back to us with
directions to vacate our prior decision and to reconsider the cause in light of
People v. Brown, supra, 54 Cal.4th
314. Under the holding of
decision and now conclude defendant is not entitled to the benefits of amended
section 4019. In all other respects, we
reissue our original opinion in this matter.
Accordingly, we affirm the judgment.
BACKGROUND
The Two Arrests and Pleas
At 9:49 p.m., on
November 21, 2007, an officer received a dispatch report regarding a female
driving a white van and a possible DUI.
The officer spotted the white van, which was traveling at an extremely
high rate of speed and without lit headlights.
The officer saw the van proceed through two intersections without
stopping or slowing. The officer had to
drive approximately 70 miles per hour to come close enough to stop the
van.
Defendant was the driver of the
white van. As defendant got out of the
vehicle, the officer saw her almost fall over.
Defendant had an “extremely unsteady gait.†The officer noticed that the left side of
defendant’s nose had blood from a scratch and defendant had a cut on the right
side of her forehead. Defendant was too
intoxicated to respond to the officer’s question about what had happened. The officer had defendant perform field
sobriety tests. She refused to submit to
a preliminary alcohol-screening test.
Dispatch advised the officer that defendant was on probation for a DUI
and that she had a suspended driver’s license.
The officer arrested defendant.
She was transported to a medical center where a blood sample was taken
and she had a blood-alcohol content of 0.26 percent.
On March 13,
2008, an information was filed in case No. SCUKCRCR0781676, which charged
defendant with two counts of DUI with prior convictions within 10 years (Veh. Code,
§§ 23152, subds. (a) & (b), 23550, subd. (a)), and one count of misdemeanor
driving while privileges were suspended (Veh. Code, § 14601.2, subd. (a)). The information alleged defendant had a
blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578) and
was driving 20 miles per hour over the maximum speed limit (Veh. Code, § 23582,
subd. (a)).
On April 8, 2008, defendant pleaded
not guilty to all charges and denied all allegations.
At 8:55 p.m., on June 28, 2008, an
officer received a report of a woman driving a beige Mazda recklessly
northbound on Main Street in Willits.
The report stated that the driver, later identified as defendant, was
swerving in and out of lanes of traffic and tailgating.
An officer stopped defendant’s car
as she was driving from a gas station.
When defendant got out of her vehicle and approached the officer, the
officer smelled alcohol and marijuana on defendant’s breath and person. The officer also noticed that defendant’s
eyes were red and watery and that she was slurring her speech. Defendant told the officer that she had
numerous joint and skeletal problems making her unable to perform the field
sobriety tests. She submitted to an
in-field preliminary alcohol screening that showed a blood-alcohol content of
0.10 percent. The officer arrested
defendant.
On July 21, 2008, an information in
case No. SCWLCRCR0885031 was filed. This
information charged defendant with one count of DUI with prior convictions
within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), one count
of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), and one
count of misdemeanor driving while privileges were suspended (Veh. Code,
§ 14601.2, subd. (a)). The
information alleged that the crimes were committed while defendant was released
on her own recognizance (§ 12022.1, subd. (b)).
On
August 14, 2008, pursuant to a negotiated disposition in case No.
SCUKCRCR0781676, defendant pleaded guilty to a DUI with a blood-alcohol level
greater than 0.08 percent (Veh. Code, § 23152, subd. (b)), and admitted four
prior DUI convictions.
On
September 18, 2008, pursuant to a negotiated disposition in case No.
SCWLCRCR0885031, defendant pleaded guilty to a DUI with prior convictions
within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), and
admitted committing the crime while released on her own recognizance
(§ 12022.1, subd. (b)).
Defendant’s Competency
The matter was
set for sentencing but, on December 2, 2008, defense counsel expressed doubt
regarding defendant’s competency under section 1368. The court suspended proceedings and appointed
two psychologists to evaluate defendant’s competence. On December 17, 2008, the court reviewed the
psychologists’ reports and found defendant legally competent and reinstated
criminal proceedings.
Report
The probation
officer filed her report and recommendation.
The probation officer recommended that the court deny probation and
sentence defendant to a total of five years.
The probation report set forth the following convictions of defendant in
Louisiana: soliciting for prostitution
in February 1989, “access device fraud†in 1992, forgery in 1993, and issuing
worthless checks in 1993.
Defendant’s
current probation officer spoke with Felix Indest, defendant’s probation
officer in Louisiana. According to
Indest, defendant had a history of substance abuse and prostitution.
With regard to
criteria affecting probation, the California probation officer stated that the
circumstances of the crimes as compared to other instances of the same crime
were more serious because of defendant’s high blood alcohol and the speed she
was traveling in her vehicle. The
circumstances in aggravation, according to the probation report, were
defendant’s numerous prior convictions as an adult, which increased in
seriousness. Additionally, defendant was
on probation when the crime was committed and defendant’s prior performance on
probation had been unsatisfactory.
Defendant appeared remorseful but the probation officer warned that
defendant’s DUI history was likely to persist and that she would continue to
endanger others if not imprisoned. With
regard to circumstances in mitigation, the probation officer noted that
defendant suffered from an alcohol addiction, which possibly reduced her
culpability for the crime.
The
probation officer noted that defendant had pleaded guilty to her fifth
DUI. The probation officer stated that
defendant had been provided ample opportunity to address her alcohol problems,
but had failed to do so and continued to be a serious danger to the
community. At the time of the probation
report, defendant had a pending matter in the court for her sixth DUI. The probation officer stated that defendant
had four prior felony convictions in Louisiana and was presumptively ineligible
for probation, except in unusual cases where the interest of justice would be
served. The probation officer stated
that she did “not see any circumstances in this case, which would justify this
case as unusual.â€
The Sentencing Hearing
Defendant
testified at the sentencing hearing and promised never to drink alcohol again
and requested probation conditioned on a long-term residential treatment
program. Defense counsel argued that the
court did not have reliable evidence that two of the convictions in Louisiana
would have been punishable as felonies in California within the meaning of
section 1203, subdivision (e)(4).
Further, even if defendant had two or more prior felony convictions,
defense counsel argued that probation was proper in this case.
At
the end of the hearing on January 6, 2009, the court found defendant
statutorily ineligible for probation; it did not find that there were
sufficient unusual circumstances to grant probation. The court sentenced defendant to a total of
four years eight months for both cases.
The court awarded a total of 289 days credit for time served (193 actual
days in custody, plus 96 conduct credit days under former section 4019,
subdivisions (b) and (c)).
On
January 15, 2009, defendant filed a timely notice
of appeal. The People petitioned the
California Supreme Court for review, which was granted.
Presentence Credits
On January 25,
2010, section 4019 was amended to provide for one day of work time credit and
one day of conduct credit for each four-day period in custody. On February 9, 2010, defendant filed a motion
under section 1237.1 in superior court, requesting an order to recalculate her
presentence credits in accordance with amended section 4019. Defendant argued that the amended version of
the statute entitled her to an increase in presentence credits. After a hearing on February 19, 2010, the court
denied the motion.
On
February 23, 2010, defendant filed a notice of appeal from the denial of her
request for presentence credits.
Defendant requested permission from this court to file a supplemental
brief to address this issue and we granted this request on March 3, 2010.
In
our opinion filed on April 13, 2010, we affirmed the denial of probation. However, we concluded that defendant was
entitled to additional presentence credits under the retroactive application of
the amendment to section 4019. The
People petitioned for review and the California Supreme Court granted review on
June 23, 2010. On May 15, 2013, this
case was transferred to us with directions to vacate our decision and to
reconsider the cause in light of People
v. Brown, supra, 54 Cal.4th 314.
Pursuant to California Rules of Court, rule 8.200(b)(1), any
supplemental brief to be filed by defendant was due May 30, 2013. On June 4, 2013, counsel for defendant
advised this court that he would not be filing a
Denial of Probation
Defendant
contends that the lower court’s refusal to grant her probation based on section
1203, subdivision (e)(4)
name="_ftnref2" title="">[2]
violated her due process rights under the Fourteenth Amendment. The trial court found that she was
presumptively ineligible for probation because she had two convictions in
Louisiana. Defendant maintains that the
two convictions in another state have to be punishable in California as a
felony and the evidence did not show that defendant’s four convictions in
Louisiana constituted a felony if committed in California. Defendant concedes that her prior forgery
conviction in Louisiana qualified as a felony under California law, but
maintains that the record is insufficient to show that any of the other three
convictions met the statutory requirements.
She asserts that we should remand the matter for a new sentencing
hearing.
The People do not
challenge defendant’s argument that the record does not establish that any of
the convictions in Louisiana, other than the forgery conviction, satisfies the
statutory requirements under section 1203, subdivision (e)(4). The People contend, however, that even if the
statutory requirements were not met, defendant cannot prevail because she
cannot demonstrate prejudice from any sentencing error. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
We
agree with the People that defendant cannot demonstrate prejudice. Had the trial court not found defendant
presumptively ineligible for probation as the result of her two prior
convictions in Louisiana, the trial court would still undoubtedly have
terminated probation and sentenced her to state prison. The trial court was presented with
overwhelming evidence that defendant’s conduct while on probation was
unsatisfactory. Defendant’s criminal
history consisted of six misdemeanor California convictions and four Louisiana
convictions. At the time of defendant’s
arrest in case No. SCUKCRCR0781676, defendant was on two grants of summary
probation from Lake County for two DUI convictions.
The probation
officer stated in her report that defendant “is appearing before the court,
having pled guilty to a fifth felony [DUI].
She has been given several opportunities to address her alcohol
problems, but they have had little effect on her. She continues to be a serious danger to the
community. The defendant has a pending
matter in superior court for her sixth [DUI] matter. It appears that the defendant has not
realized society will not accept this type of behavior.â€
Rather than
provide evidence to show prejudice, defendant claims the sentencing hearing did
not comport with the most basic of procedural safeguards and maintains that the
information considered by the court was not reliable. (See People
v. Peterson (1973) 9 Cal.3d 717, 726 [probation hearings do not require the
same procedural safeguards as trials on the issue of guilt, but “an applicant
for probation is nevertheless entitled to relief on due process grounds if the
hearing procedures are fundamentally unfairâ€]; see also People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [“Reliability of
the information considered by the court is the key issue in determining
fundamental fairnessâ€]; People v. Eckley (2004)
123 Cal.App.4th 1072, 1080 [“A court’s reliance, in its sentencing and
probation decisions, on factually erroneous sentencing reports or other
incorrect or unreliable information can constitute a denial of due
processâ€].) Defendant argues that a
sentence cannot be based on false information.
(See United States v. Weston (9th
Cir. 1971) 448 F.2d 626, 634 [the defendant denied the information contained in
the presentencing report and the Ninth Circuit held that the hearsay
information in the report was of so little value that the trial court should
not have relied upon this information when imposing the maximum term].)
Defendant’s
argument lacks merit because most of the evidence presented at the sentencing
hearing was reliable. Although the
evidence may not have satisfied the requirements of section 1203, subdivision
(e)(4), the evidence did show defendant would be unable to comply with the
conditions of probation in the future.
This evidence was both reliable and overwhelming. Indeed, when sentencing defendant to the
midterm for case No. SCUKCRCR0781676, the court commented on defendant’s
repeated offenses and stated, “This is a borderline aggravated [case].â€
We
decline to order a remand because it is not reasonably probable the trial court
would impose a different sentence. (
861, 889-890 [where the trial court was unaware of the breath of its
discretion, no reversal and remand for resentencing is necessary as the remand
would be an idle act that exalts form over substance because it is not
reasonably probable the court would impose a different sentence]; see also
945-946 [no remand required where record shows that it is unlikely that the
trial court would strike the prior conviction in a three strikes case].) Defendant gave the court no reason to believe
that she would comply with the conditions of her probation in the future.
Under
section 2900.5, a person sentenced to state
prison for criminal conduct is entitled to credit against the term of
imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a
criminal defendant may earn additional presentence credit against his or her
sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and
compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called,
collectively, conduct credit. (
939, fn. 3.)
When defendant was
sentenced in January 2009, under the version of section 4019 then in effect,
conduct credit could be accrued at the rate of two days for every four days of
actual presentence custody. (Former §
4019.) In October 2009, the Legislature
passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18). Senate Bill 18 “addresses the fiscal
emergency declared by the Governor by proclamation on December 19, 2008.†(Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Its provisions provide various means by which
prison populations may be reduced, thereby easing prison overcrowding and
lowering the cost. This Bill, among
other things, amended section 4019, effective January 25, 2010, to provide that
any person who is not required to register as a sex offender and is not being
committed to prison for, or has not suffered a prior conviction of, a serious
felony as defined in section 1192.7 or a violent felony as defined in section
667.5, subdivision (c), to accrue conduct credit at the rate of four days for
every four days of presentence custody.
Defendant contended
that the amendment applies retroactively and, because her conviction was not
final on January 25, 2010, the amendment applies to her. “[A]bsent a saving clause, a criminal
defendant is entitled to the benefit of a change in the law during the pendency
of his appeal.†(People v. Babylon (1985) 39 Cal.3d 719, 722.) “ ‘[F]or the purpose of determining
retroactive application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed.
[Citations.]’ [Citation.]†(People
v. Vieira (2005) 35 Cal.4th 264, 306.)
In
Supreme Court rejected the defendant’s argument that the statute applies
retroactively and held that the amendment to section 4019 applies prospectively
only. (Brown, at p. 318.) The court
also concluded that the prospective application of Senate Bill No. 18 does not
violate equal protection principles. (
here, is therefore not entitled to the benefits of amended section 4019 for any
time spent in custody prior to the amendment’s effective date of January 25,
2010. Thus, the lower court properly
calculated defendant’s conduct credit based on former section 4019, and awarded defendant 289 days of presentence custody
credit (193 actual days in custody plus 96 work and conduct credits).
The
judgment is affirmed.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
to the Penal Code.
provides: “Except in
unusual cases where the interests of justice would best be served if the person
is granted probation, probation shall not be granted to any of the following
persons:†“Any person who has been
previously convicted twice in this state of a felony or in any other place of a
public offense which, if committed in this state, would have been punishable as
a felony.â€
