Filed 1/23/18 P. v. Samelson CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. TADESSE ISIAH SAMELSON, Defendant and Appellant.

A149256 (San Francisco County Super. Ct. No. 12030435)

Defendant appeals from the sentence imposed by the trial court for second degree burglary following revocation of probation. Defendant contends the court was unaware of the scope of its discretion when it pegged his current sentence to what would have been an appropriate sentence for his conviction of first degree burglary, which was subsequently dismissed pursuant to the original plea bargain. We affirm.

STATEMENT OF THE CASE

Case No. 12030435

In 2013, defendant was charged in an 11-count information which included, in counts 1 and 6, charges of first degree burglary committed on the same day. (Pen. Code,[1] § 459.) Pursuant to a negotiated disposition, the prosecutor amended count 6 to allege second degree burglary, and defendant pleaded guilty to that reduced charge, as well as to the first degree burglary charged in count 1, and the sentences were to be concurrent. The remaining charges were dismissed. As part of the bargain, the parties and the court further agreed that defendant would be placed on probation on the condition that he complete a one-year residential drug treatment program, and that if he completed the program within one year, had no new felony conviction for a crime committed in San Francisco, and did not violate his probation, he would be permitted to withdraw his plea to count 1, residential burglary, which the court would then dismiss pursuant to section 1385 and People v. Barro (2001) 93 Cal.App.4th 62.[2] If defendant suffered a felony conviction in a county other than San Francisco, the trial court retained the discretion to determine whether defendant should be permitted to withdraw his plea and have his conviction for residential burglary dismissed. In March 2013, the trial court suspended imposition of sentence and placed defendant on probation on the condition that he serve one year in the county jail to be completed in a residential treatment program. Defendant subsequently completed the drug treatment program as ordered.

In May 2015, the court revoked defendant’s probation for a failure to appear at a scheduled probation appointment and subsequently reinstated probation on the same terms and conditions, except that it extended defendant’s probation to March 2016. When defendant failed to appear in court in June 2015, the court issued a bench warrant that was permanently stayed.

In June 2016, defendant’s motion to withdraw his guilty plea to first degree burglary charged in count 1 was granted and, on the district attorney’s motion, the court dismissed the count pursuant to section 1385. Defendant’s conviction for second degree burglary in count 6 was not affected.

Case No. 15020186

In September 2015, defendant was arrested in San Francisco for first degree burglary. The arrest resulted in new criminal charges and a probation revocation petition. On August 1, 2016, a jury acquitted defendant of first degree burglary, but convicted him of misdemeanor trespass (§ 602.5). Following a probation revocation hearing in case No. 12030435, the second degree burglary case, the court found defendant in violation of probation.

The court sentenced defendant to four years in county jail pursuant to section 1170, subdivision (h): three years (the aggravated term) for the second degree burglary conviction and one year consecutive for the trespass conviction. The court stated the reasons for its choice of sentence as follows. “Well, my sentencing requirements on having found Mr. Samelson in violation of his probation in case No. 12030435 is to sentence him as if I were his sentencing judge at the time of his conviction. He was convicted of burglary in the first degree. That was reduced by virtue of his subsequent conduct. But to put myself back in the position of the judge who was sentencing him on the first degree burglary, the term for a first degree burglary is 24 months, 48 months, or 72 months. [¶] So therefore the midterm on the first degree burglary, which I think would have been appropriate on the first degree burglary, if he were to receive a nonprobationary sentence, that is, a state prison sentence, which would have been served in state prison, not in county jail, is 48 months. And I do think that would have been appropriate under the circumstances but for the fact that the court took an extraordinary position of giving Mr. Samelson the opportunity to earn himself out of a strike, out of a burglary first degree conviction, out of the state prison sentence, by complying with the terms of his probation which included not violating the law, completing the treatment program, and not using drugs. [¶] . . . [¶] I’m going to sentence you to 3 years on the second degree burglary—because it was reduced by Judge Chan. That’s the maximum. I am going to sentence you to 1 year in county jail. It will be consecutive. You will notice that 3 plus 1 equals 4, which is 48 months, which is what you [would] have done on a state prison sentence if you had gone to state prison with the midterm upon your conviction. [¶] And so what I’m doing today is both consistent with what a sentencing judge could have done, and given the severity of the offense you committed previously, what a judge, perhaps other than Judge Chan would have done, given the conduct that is described in the probation report for your earlier offense, which I just read in its entirety in preparation for sentencing today. [¶] So I’m looking at the presentence report dated March 22, 2013. It evidenced high risk of recidivism. It evidenced a high probability of substance abuse. It evidenced a high probability of criminal opportunity, a high probability of criminal personality, and all of those things I believe are consistent with the upper term. [¶] So for the following reasons, on your violation of probation under conviction of second degree Penal Code [section] 459, you are ordered to serve 3 years in . . . county jail. [¶] . . . And the circumstances in aggravation are that the crime involved—attempt or actual taking or damage of great monetary value, [California Rules of Court, rule 4.421[(a)(9)] and the other factors set forth in the presentence report all support the aggravated sentence on the [section] 459 second degree. [¶] With regard to a misdemeanor conviction, the maximum sentence is 1 year in the county jail. That will be consecutive to the 3 years in state prison. That is because there—the resident was home at the time.” (Italics added.)

STATEMENT OF FACTS[3]

On November 21, 2012 at 11:42 a.m., San Francisco Police Sergeant Nelson Artiga was dispatched to 1855 Sacramento Street in response to a call of a burglary in progress. That building is a multi-unit apartment complex. Artiga could hear sounds of breaking glass coming from the building and called for backup. He found a bloody trail in the alleyway behind the garage, broken glass on two separate storage units, and footprints on the doors of the storage units. Through a window in the garage Artiga could see blood and property on the floor, and an open car door.

More broken glass led from that garage to a garage adjacent to 1865 Sacramento Street, another multi-unit apartment building. The garage window had been broken and there was blood on the floor and inside an unlocked car in the garage, and property from inside the car had been strewn about. Both car owners indicated there was nothing of value in them.

A bloody trail led to an apartment complex on Franklin Street, which had been broken into via a rooftop door leading to a back stairwell. Tenants of that building had also called 911 to report someone breaking in. A basement apartment had been entered through an open bathroom window, and another apartment had been entered through a broken back door leading to the kitchen area. A suitcase taken from one of the apartments was filled with property from both apartments and thrown onto the street from a window. Tenants of both apartments reported finding blood on the floors and missing property. Neither tenant was home at the time of the break-in.

Defendant was apprehended about 26 minutes later, after police spotted him hiding under a tarp in one San Francisco backyard, running through several others, breaking a window, and jumping through it. The pursuing officer caught up to him and grabbed him by the leg; defendant swung at the officer with a shard of glass in an attempt to break free, but he did not actually stab the officer. At the time, defendant was sweating, talking fast, enraged, and “acting in sort of a wild manner,” leading the officer to think defendant was under the influence of drugs. Officer Artiga saw defendant after he was handcuffed. Defendant had blood on him and was very agitated.

Defendant was Mirandized (Miranda v. Arizona (1966) 384 U.S. 436) and admitted he was high on methamphetamine when he broke into the storage lockers and apartments.

DISCUSSION

Defendant contends the trial court failed to fully appreciate that the section 1385 dismissal of defendant’s first degree burglary conviction wiped the slate clean as if he had never suffered it in the first place; and, as a result, the court failed to understand the scope of its sentencing discretion when it used the four-year sentence it could have imposed at the time the court suspended imposition of sentence and placed him on probation as a benchmark for the current four-year sentence it did impose after revocation of probation. We disagree.[4]

It is true that a section 1385 dismissal “operates to free the criminal defendant from further prosecution and punishment for that crime. The defendant stands as if he had never been prosecuted for the charged offense.” (People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 136.) It is also true that in sentencing defendant after revocation of probation, the court is required to look back to “circumstances existing at the time supervision was granted, and subsequent events may not be considered in selecting the base term.” (Cal. Rules of Court, rule 4.435(b)(1); but see People v. Harris (1990) 226 Cal.App.3d 141, 147 [court may consider events occurring between the original grant of probation and a later reinstatement].) However, as the Attorney General points out, and defendant fails to address, a sentencing court may consider facts of dismissed counts that are transactionally related to the count for which a defendant is being sentenced. (People v. Harvey (1979) 25 Cal.3d 754, 758.) That holding remains viable. (People v. Martin (2010) 51 Cal.4th 75, 77 [“Implicit in the plea agreement, which is in the nature of a contract, is the understanding that the trial court cannot use the facts of a dismissed charge to impose ‘adverse sentencing consequences’ unless the defendant consents or a transactional relationship exists between the admitted charge and the dismissed charge” citing Harvey, at p. 758.) The import of the Harvey rule to this case is that the court was entitled to consider the dismissed burglary count because, as the facts adduced at the preliminary hearing demonstrate, the burglary charged in count 1 was transactionally related to the burglary charged in count 6, for which defendant was placed on probation pursuant to the plea bargain. Therefore, the trial court did not misunderstand the scope of its discretion and did not err by including the dismissed count in its consideration of the appropriate sentence after probation revocation.

DISPOSITION

The judgment is affirmed.

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