P. v. Ochoa CA5
mk's Membership Status
Usergroup: Administrator
Listings Submitted: 0 listings
Total Comments: 0 (0 per day)
Last seen: 05:23:2018 - 13:04:09
Biographical Information
Contact Information
Submission History
P. v. Mendieta CA4/1
Asselin-Normand v. America Best Value Inn CA3
In re C.B. CA3
P. v. Bamford CA3
P. v. Jones CA3
Find all listings submitted by mk
By mk
05:18:2018
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS OCHOA,
Defendant and Appellant.
F074642
(Super. Ct. Nos. BF162002A, BF164452A)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge.
Erin J. Radekin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Carlos Ochoa was on felony probation in Kern County Superior Court case No. BF162002A (case 2002) for a Vehicle Code 10851 conviction when he again was found in possession of a stolen vehicle. In Kern County Superior Court case No. BF164452A (case 4452), he was convicted of a violation of Penal Code section 496d, subdivision (a). Based upon the conviction in case 4452, he was found to be in violation of his probation in case 2002.
On October 12, 2016, Ochoa was before the trial court for a concurrent sentencing hearing on the probation violation in case 2002 and the conviction in case 4452. The trial court reinstated formal probation in case 2002, and imposed a term of mandatory supervision pursuant to section 1170, subdivision (h)(5)(B) in case 4452. Ochoa maintains the trial court erred in reinstating probation in case 2002, instead of imposing a sentence pursuant to section 1170, subdivision (h).
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because the only issue raised by Ochoa in this appeal is a challenge to the sentence imposed, we provide a recitation of only those facts and procedure relevant to the issue on appeal.
Ochoa was on two grants of misdemeanor probation, and a grant of felony probation for vehicle theft in case 2002, when he was found in possession of a stolen vehicle. A jury found Ochoa guilty of violating section 496d, subdivision (a), receiving possession of a stolen vehicle, in case 4452. He also was found guilty of a misdemeanor violation of Vehicle Code section 14601.2, subdivision (a).
On September 12, 2016, the trial court found Ochoa in violation of his probation in case 2002 based upon his conviction in case 4452. Ochoa asked that sentencing on the probation violation be set concurrently with sentencing in case 4452. The trial court referred the matters to probation for a recommendation.
The sentencing report in case 2002 for the probation violation recommends reinstatement of probation, subject to serving 180 days in the county jail. The sentencing report prepared by the probation department for case 4452 states in part:
“The defendant is an entirely unsuitable candidate for a grant of felony probation. This analysis is based on his prior lengthy criminal record, consisting of 27 prior misdemeanor and felony convictions, beginning in 2000 until the present, his poor performance on prior grants of probation and his continuing criminal behavior.”
The probation department recommended that probation be denied in case 4452 and Ochoa be sentenced pursuant to section 1170, subdivision (h)(5)(B) to the upper term of four years, with two years in custody and two years on mandatory supervision.
A concurrent sentencing hearing on the probation violation in case 2002 and the conviction in case 4452 was held on October 12, 2016. At that time, the probation department advised the trial court that Ochoa “will only have one probation officer when he is on mandatory supervision. Even though he is still on felony probation, one probation officer oversees him.” The trial court stated that it considered Ochoa’s:
“extensive criminal history including numerous convictions related to theft, specifically auto theft as well, given the fact that he was on felony probation when this matter was occurring for auto theft, I do not find that he’s a suitable candidate for probation.”
Thereafter, in case 4452, the trial court denied probation and sentenced Ochoa to a term of four years, with three years to be served in local custody and the remaining time on mandatory supervision, pursuant to section 1170, subdivision (h)(5)(B), for the section 496d conviction. Various terms and conditions of mandatory supervision were imposed by the trial court. For the misdemeanor conviction in case 4452, the trial court imposed a concurrent term of 90 days in local custody.
As to the probation violation in case 2002, the trial court stated it agreed with probation that Ochoa’s “actions do warrant a sanction that includes jail time.” The trial court asked if Ochoa would “waive the one year maximum time in local custody so that” the court could impose the sentence recommended by probation. Defense counsel responded, “So waived.” The trial court reinstated probation, modified to include the condition that Ochoa serve 180 days in local custody, and ordered “all of the other terms of probation that were previously imposed” in the case “remain in full force and effect.”
Ochoa did not object to the imposition of a section 1170, subdivision (h) sentence in case 4452 and reinstatement of probation in case 2002 at the sentencing hearing.
On October 17, 2016, Ochoa filed a notice of appeal in case 4452. By order filed June 7, 2017, this court construed the notice of appeal filed in case 4452 to be an appeal from case 2002 as well.
DISCUSSION
Ochoa contends the trial court erred in reinstating probation in case 2002, rather than imposing a sentence pursuant to section 1170, subdivision (h). The People maintain Ochoa’s contention is not cognizable on appeal and in any event, there is nothing that precludes a defendant from being on mandatory supervision and felony probation at the same time.
I. Issue is Cognizable on Appeal
The People contend Ochoa may not raise this issue on appeal because he failed to comply with section 1203.2a. Section 1203.2a states in relevant part:
“If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing . . . .”
The People assert that because Ochoa is imprisoned for purposes of section 1203.2a in case 4452, and on felony probation in case 2002, he can file a demand under section 1203.2a that his sentence be imposed in case 2002.
The purpose of section 1203.2a is to require the trial court to consider exercising its discretion to impose a concurrent sentence and to avoid inadvertent consecutive sentences through inaction. (In re Hoddinott (1996) 12 Cal.4th 992, 999-1000.) Section 1203.2a does permit a probationer who, while on probation for an earlier case, receives a prison sentence in another criminal proceeding to request that probation be revoked and sentence imposed. (In re White (1969) 1 Cal.3d 207, 210.) Section 1203.2a serves to prevent a defendant from inadvertently being denied the benefit of section 669. (People v. Johnson (1987) 195 Cal.App.3d 510, 514.) Sentences under section 1170, subdivision (h) are prison sentences for purposes of making a section 1203.2a demand. (People v. Mendoza (2015) 241 Cal.App.4th 764, 786-794.)
The People seem to take the position that Ochoa is required to invoke section 1203.2a. Section 1203.2a requires a defendant to give up the right to be present in court at the probation revocation hearing with counsel. (People v. Wagner (2009) 45 Cal.4th 1039, 1053.) However, section 1203.2a is not the exclusive sentencing procedure available to defendants in Ochoa’s situation and it is not a mandatory procedure that Ochoa is required to invoke. (People v. Wagner, supra, at pp. 1054-1055.)
Here, the trial court imposing sentence on the subsequent offense for which Ochoa was incarcerated in case 4452 also conducted a concurrent sentencing hearing in case 2002 in which Ochoa had been granted felony probation. The trial court implemented section 669, subdivision (a), which applies when a defendant has been convicted of two or more crimes in different proceedings. A single judicial officer heard both sentencing matters concurrently, which in our view serves the purpose of providing Ochoa the benefit of section 669 and of avoiding inadvertent sentencing decisions that section 1203.2a is designed to prevent. (People v. Wagner, supra, 45 Cal.4th at p. 1053.)
Once Ochoa was found to have violated the terms of his probation in case 2002, the trial court had several sentencing options: reinstate probation on the same terms, reinstate probation with modified terms, or terminate probation and impose a term of imprisonment. (People v. Medina (2001) 89 Cal.App.4th 318, 321.) In Ochoa’s case, the trial court chose to reinstate probation on modified terms in case 2002. An order imposing sentence, the execution of which is suspended and probation granted, is an appealable order. (People v. Martinez (2015) 240 Cal.App.4th 1006, 1011-1012.) When that order is not appealed, it becomes final. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
Ochoa effectively received the benefit of section 669, and a sentencing hearing on both case 2002 and case 4452 was held, at which he was present with counsel. The trial court imposed sentence in case 2002. What the People suggest is that Ochoa forfeit his right to appeal from the sentence in 2002, and be required to seek what amounts to a second sentencing hearing pursuant to section 1203.2a. This would be contrary to the California Supreme Court’s decision in Wagner that section 1203.2a is not mandatory and we decline to interpret the statute in that manner. (People v. Wagner, supra, 45 Cal.4th at pp. 1054-1055.)
II. Concurrent Mandatory Supervision and Felony Probation
Ochoa contends the trial court erred in imposing mandatory supervision and felony probation at the same time.
At the concurrent sentencing hearing, the trial court commenced by asking defense counsel if she had any comments on behalf of Ochoa with respect to sentencing. Defense counsel responded that Ochoa was asking that the term for case 2002 “just be a term concurrent with what he gets on the new case as opposed to keeping him on probation there, so it’s cleaner with one set of mandatory supervision.”
The trial court then proceeded to impose sentence in case 4452, specifically stating that sentence was imposed pursuant to section 1170, subdivision (h)(5)(B), with three years to be served in custody followed by mandatory supervision. Thereafter, the trial court proceeded to address case 2002.
With respect to case 2002, the trial court stated its intent was to follow the probation department recommendation. The trial court asked if defense counsel had any comments, to which counsel replied, “That’s fine, Your Honor. Submitted.”
The probation department recommended in case 2002 that probation be reinstated, subject to serving 180 days in the county jail. Ochoa did not object to the trial court following the recommendation. It is well settled that a party who fails to object in the trial court to a discretionary sentencing choice may not for the first time challenge the sentence on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) This is particularly true where, as here, the parties were apprised of the sentencing choice and were provided an opportunity to object or otherwise seek a change. (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
Consequently, if the trial court’s sentencing choice in case 2002 was a discretionary choice, Ochoa is precluded from challenging that sentence on appeal because he failed to object in the trial court. If, however, the trial court imposed a legally unauthorized sentence in case 2002, then Ochoa has not forfeited any challenge by failure to object in the trial court. (People v. Scott, supra, 9 Cal.4th at p. 354.) A sentence is generally unauthorized if it “could not lawfully be imposed under any circumstances in the particular case.” (Ibid.)
Therefore, the question before us is whether the sentence in case 2002 is legally unauthorized. We conclude it is not. The Legislature has directed that in some circumstances, probation is unavailable or limited. (People v. Moran (2016) 1 Cal.5th 398, 402.) Ochoa has cited no statutory provision, and we have found nothing in the language of section 1170, that specifically precludes a defendant from being on mandatory supervision and felony probation at the same time. Absent a statutory prohibition on probation, a trial court has broad discretion to choose probation when sentencing a defendant. (People v. Moran, supra, at p. 402.)
Section 1170, subdivision (h)(5)(B) states in part: “During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation . . . . The period of supervision shall be mandatory, and may not be earlier terminated except by court order.” The probation department represented at the sentencing hearing that Ochoa would have only one probation officer supervising him while on felony probation and mandatory supervision.
Mandatory supervision has been characterized as “akin to probation.” (People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2.) However, courts have also observed that the period of mandatory supervision after release from local custody is in some respects similar to parole. (People v. Martinez (2014) 226 Cal.App.4th 759, 763.)
The terms, conditions, and procedures applicable to mandatory supervision are those “generally applicable to persons placed on probation.” (§ 1170, subd. (h)(5)(B).) When a trial court places a defendant on mandatory supervision as part of a split sentence, the trial court may impose conditions for that period of supervision by the probation officer. (§ 1170, subd. (h)(5)(A), (B); People v. Cruz (2012) 207 Cal.App.4th 664, 671.) Although some courts consider the period of mandatory supervision after the custodial portion of a split sentence to be more akin to parole than probation, the conditions of mandatory supervision are to be those generally applicable to persons on probation. (§ 1170, subd. (h)(5)(B).)
Thus, the terms and conditions of Ochoa’s mandatory supervision and felony probation will be substantially similar, and perhaps identical, and Ochoa will be under the supervision of the same probation officer in case 4452 and case 2002. Thus, there is not a “significant potential for confusion and conflict” as with a defendant potentially subject to postprison community supervision and mandatory supervision. (People v. Torres (2013) 213 Cal.App.4th 1151, 1158.) We view serving a term of mandatory supervision while concurrently on felony probation as no different from a defendant being on dual status as a probationer and parolee, which is not precluded legally. (People v. Williams (1991) 226 Cal.App.3d 1314, 1318.)
Consequently, absent a statutory prohibition on probation, the trial court could exercise its discretion to reinstate probation in case 2002. (People v. Moran, supra, 1 Cal.5th at p. 402.)
III. Probation Violation
Almost in passing, Ochoa maintains that the trial court erred in imposing a condition of 180 days in local custody for the violation of probation in case 2002. He asserts the maximum that could be imposed as a consecutive sentence for a Vehicle Code section 10851 conviction was one-third the midterm, or eight months, pursuant to section 1170.1, subdivision (a). Thus, he argues that as he had already served 180 days, the additional 180 days equates to a total sentence of 360 days, which exceeds the maximum eight months.
Ochoa’s reliance on section 1170.1, subdivision (a) is misplaced. The trial court imposed the 180 days in custody as a sanction for violating probation. A trial court may impose as a condition of felony probation local custodial time, not to exceed one year. (§ 19.2; People v. Bailey (1983) 140 Cal.App.3d 828, 830.) The total of 360 days in local custody imposed as a condition of probation does not exceed the one year maximum.
DISPOSITION
The judgment is affirmed.
Description | Appellant Carlos Ochoa was on felony probation in Kern County Superior Court case No. BF162002A (case 2002) for a Vehicle Code 10851 conviction when he again was found in possession of a stolen vehicle. In Kern County Superior Court case No. BF164452A (case 4452), he was convicted of a violation of Penal Code section 496d, subdivision (a). Based upon the conviction in case 4452, he was found to be in violation of his probation in case 2002. On October 12, 2016, Ochoa was before the trial court for a concurrent sentencing hearing on the probation violation in case 2002 and the conviction in case 4452. The trial court reinstated formal probation in case 2002, and imposed a term of mandatory supervision pursuant to section 1170, subdivision (h)(5)(B) in case 4452. Ochoa maintains the trial court erred in reinstating probation in case 2002, instead of imposing a sentence pursuant to section 1170, subdivision (h). We affirm. |
Rating | |
Views | 6 views. Averaging 6 views per day. |