P. v. Sheets

Filed 10/25/07 P. v. Sheets CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Tulare County. Elisabeth B. Krant, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Phillip James Sheets pleaded guilty to willfully inflicting corporal injury on a spouse or cohabitant and received probation. The felony complaint upon which his plea was based contained a citation error. It referred to Penal Code section 273.5, subdivision (e) (which sets forth sentencing provisions), in the place where it should have referred to subdivision (a) (which describes the substantive offense). The same and other similar citation errors occurred at other points in the proceedings. After violating the terms of his probation, defendant was committed to state prison for a term of four years. He appeals from the order revoking probation and committing him to prison, claiming his conviction and sentence must be set aside because of the citation errors. We affirm the judgment; the abstract of judgment shall be amended to cite the correct subdivision.

FACTUAL AND PROCEDURAL HISTORIES

Defendant was arrested on August 11, 2004, after police came to the home of his wife in response to a domestic violence call. Defendant and his wife were separated. His wife told police he had come to her house and hit her with a chair five days before and now had returned and started another altercation. Her arm was bruised. At the time of his arrest, defendant was on probation for an October 2003 conviction of willfully inflicting corporal injury on his wife. The court had ordered him to stay away from the victim.

The district attorney filed a four-count felony complaint. Count one alleged that defendant committed a felony violation of section 273.5^[1]on August 6, 2004. Count two alleged that he committed a misdemeanor violation of section 243, battery of a noncohabiting spouse, on August 11, 2004. Counts three and four alleged violations on August 6 and August 11, 2004, of the courts order directing defendant to stay away from his wife.

The complaints citation error appeared in count one, which read as follows:

On or about the 6th day of August, 2004, in the above named Judicial District, the crime of CORPORAL INJURY SPOUSE/COHABITANT/CHILDS PARENT W/PRIOR, in violation of Penal Code Section PC273.5(E), a FELONY, was committed by PHILLIP JAMES SHEETS, who did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon E.S., who was SPOUSE TO DEFENDANT.

It is further alleged, pursuant to subdivision (e)(1), that the defendant has, within the past 7 years, suffered the following prior conviction(s):

COURT CODE/ CONVIC. COURT

CASE STATUTE DATE COUNTY STATE TYPE

114073 PC273.5(A)/17(B) 10/29/03 TULARE CA SUPERIOR

Subdivision (e) of section 273.5, which the complaint cited as the statute defendant violated, sets forth sentencing provisions for recidivist batterers like defendant. Subdivision (e)(1) provides for a prison term of two, four, or five years and a fine of up to $10,000 for those convicted of violating section 273.5 with a prior violation, within seven years, of section 273.5, subdivision (a), section 243, subdivision (d), or sections 243.4, 244, 244.5, or 245. Subdivision (e)(2) provides for a prison term of two, three, or four years and a fine of up to $10,000 for those convicted of violating section 237.5, with a prior violation, within seven years of section 243, subdivision (e).

Subdivision (a) of section 273.5, which the complaint did not cite in stating the statute allegedly violated, sets forth the offense:

Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

The trial court perpetuated the district attorneys citation error, and some other problems also occurred. Defendant pleaded guilty to count one, described in the courts minute order as PC273.5(E), on August 24, 2004. At the change-of-plea hearing, the court at first referred to the charged offense as a 273.55, thats a spousal cohabitant abuse or battery with a prior . Section 273.55 was repealed in 1999; it was a penalty provision similar to current section 273.5, subdivision (e). (Stats. 1999, ch. 662,  10.) The plea included the following exchange:

THE COURT: In Case Number 132066, what is your plea to the charge in Count 1 that on or about the 6th of August 2004 you violated Penal Code Section 273.5(b), a felony, in that you willfully and unlawfully inflicted corporal injury resulting in a traumatic condition upon your spouse whose initials are ES after having previously been convicted of 273.5(a) slash 17(b) on October 29th, 2003 in the Tulare County Superior Court, Case Number 114073. What is your plea?

THE DEFENDANT: Guilty.

THE COURT: The Court accepts the defendants plea of guilty.

Section 273.5, subdivision (b), is only a definitional provision; it states that holding oneself out as a spouse is not necessary for cohabitation within the meaning of the statute.

The remaining counts were dismissed on the motion of the People. The court imposed and suspended the middle term of four years imprisonment and imposed felony probation for a period of three years. The probation order referred to the offense of conviction as a violation of Penal Code 273.5(e): Corporal injury to Spouse/Cohabitant/Childs Parent. There was no appeal from the conviction or the imposition of probation.

The probation officer filed a certificate and affidavit on August 4, 2006, alleging that defendant violated section 594, subdivision (a) (vandalism), and requesting that the court revoke defendants probation. At the probation-revocation hearing, a police officer testified that he responded to a disturbance call on October 11, 2005. He went to an apartment building, where he made contact with a woman. He also found a car in the parking area with its windows smashed. Near the car he found a hammer. When the officer returned to the police station, there was a telephone message for him purporting to be from defendant. The officer returned the call, reaching a man who identified himself as defendant. The man explained that he had argued with his girlfriend and smashed her cars windows with a hammer.

Defendants girlfriend also testified at the probation-revocation hearing. She said she called the police on the night of the incident to say defendant had broken her cars windows, but that this was false. The People introduced into evidence a civil compromise signed by defendants girlfriend, stating that defendant had paid to repair the windows in full satisfaction for the damage. She testified that defendant paid to repair the windows to help me out because we were living together, but [n]ot because he broke them.

Before the court ruled on the revocation of probation, defendant filed a motion seeking to have his conviction set aside because of some of the citation errors we have described. His memorandum of points and authorities objected to the courts references to sections 273.55 and 273.5, subdivision (b). This motion only led, however, to another mistake: The minute order denying the motion reflects defendants agreement to allow Court to amend plea to PC273.5(e)(1).

The court found defendant had violated the term of his probation that required him to abide by all laws. It revoked his probation and committed him to prison for the previously suspended four-year term. The abstract of judgment again referred to the crime as a violation of section 273.5, subdivision (e), with the description [c]orporal injury spouse/cohabitant/childs par.

Defendant filed a notice of appeal. It states that defendant appeals from a finding of a violation of probation after hearing on the violation on August 22, 2006, and a commitment to state prison on October 13, 2006. It does not purport to give notice of an appeal from the judgment of conviction. Defendants appellate briefs, however, ask the court to set aside the conviction and the violation of probation. Defendant never requested or obtained a certificate of probable cause pursuant to section 1237.5.

DISCUSSION

I. Certificate of probable cause

As a threshold matter, the People urge us to dismiss the appeal. Section 1237.5 allows an appeal from a conviction based on a guilty plea only if the defendant requests and obtains a certificate of probable cause from the trial court. Defendant did not do this here. He argues that a certificate of probable cause is not required because his appeal is from an order following a contested probation-revocation proceeding. We will assume without deciding that defendant was not required to obtain a certificate of probable cause in this case.

With exceptions not applicable here, a certificate of probable cause is a prerequisite to an appeal from a judgment of conviction based on a guilty plea. ( 1237.5; Cal. Rules of Court, rule 8.304(b).) On the other hand, an order revoking probation is an appealable order (People v. Delles (1968) 69 Cal.2d 906, 908-909; People v. Robinson (1954) 43 Cal.2d 143, 145) and, where the revocation proceedings were contested, a certificate of probable cause is not required (Cal. Rules of Court, rule 8.304(b)(1) [certificate required for appeal after an admission of probation violation (italics added)]). Defendants argument is that, because these were contested probation-revocation proceedings, he can appeal from the order revoking probation without a certificate of probable cause even though the appeal is based on a claim that the plea and conviction are invalid.

This argument has some attractiveness. In form, the appeal is from the probation-revocation order; the revocation proceedings were contested, so an appeal would appear not to require a certificate of probable cause for that reason. In substance, however, the appeal challenges the validity of a judgment of conviction based on a guilty plea, and if defendant had filed an appeal from that judgment, a certificate of probable cause would have been required.

For the sake of argument, we will assume that defendant is correct on this point. In doing so, we acknowledge that the California Supreme Court has rejected the idea that the certificate-of-probable-cause requirement can be disregarded on appeal where disregarding it will promote judicial economy by forestalling collateral attack. (People v. Panizzon (1996) 13 Cal.4th 68, 89, fn. 15.) This holding does not apply to the situation before us; defendant here presents a colorable argument that the certificate requirement does not apply in the first place. To avoid reaching that question, we will affirm on the merits instead of dismissing the appeal.

II. Citation error

Defendant argues that the conviction and order revoking probation must be set aside because he has not been convicted of a substantive crime. (Capitalization omitted.) Since the complaint and orders referred to a sentencing provision ( 273.5, subd. (e)), not to the provision setting forth the crime ( 273.5, subd. (a)), the conviction is a legal nullity requiring reversal of the judgment, he contends. He says the citation error means the trial court lacked subject matter jurisdiction over him, and his punishment violated section 681 ([n]o person can be punished for a public offense, except upon a legal conviction in a Court having jurisdiction thereof) and denied him due process of law under the federal Constitution. As we will explain, defendant is mistaken.

The mistakes that conceivably might affect the question of whether defendant was validly convicted were those in the felony complaint and those in the courts oral comments at the change-of-plea hearing; we will examine the relevant requirements for those two stages. To satisfy due process requirements, an accusatory pleading must give the accused adequate notice of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (In re Hess (1955) 45 Cal.2d 171, 175.) This means, for example, that a conviction is invalid if it is of a lesser offense not set forth in the information and not necessarily included in an offense that was set forth; the defendant is not adequately warned of the possibility of being convicted of the lesser offense under those circumstances. (People v. Lohbauer (1981) 29 Cal.3d 364, 368.) The colloquy leading up to a courts acceptance of a guilty plea must reflect the defendants intelligent and voluntary waiver of the constitutional privilege against self-incrimination and the constitutional rights to a jury trial and to confrontation of witnesses. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244; People v. Howard (1992) 1 Cal.4th 1132, 1175; In re Tahl (1969) 1 Cal.3d 122, 132, overruled on other grounds by People v. Howard, supra, at pp. 1177-1178.) Of particular importance here, there must be direct evidence that the accused was aware, or made aware, of the nature of the charge . (In re Tahl, supra, at p. 132.)

The proceedings in this case satisfied these standards in spite of the citation errors. Throughout the proceedings, the substantive charge was correctly described in words even as the incorrect Penal Code section numbers were being cited. The complaint accused defendant of the crime of CORPORAL INJURY SPOUSE/COHABITANT/CHILDS PARENT W/PRIOR . When taking defendants guilty plea, the court called the crime a spousal cohabitant abuse or battery with a prior and asked defendant how he pleaded to the charge that he committed a felony, in that you willfully and unlawfully inflicted corporal injury resulting in a traumatic condition upon your spouse whose initials are ES after having previously been convicted of 273.5(a) slash 17(b) . The order granting probation referred to the offense as Corporal Injury to Spouse/Cohabitant/Childs Parent. In moving to set aside the conviction because of citation errors, defendants trial counsel even acknowledged that the crime was described in the record of the proceedings and that defendant acknowledged the description when he entered his plea: I would be remiss in not pointing out that I am fully aware in reviewing the transcript that there are descriptions of the actions of Mr. Sheets that he apparently acknowledged on the record. It is still the defense contention that irrespective of the descriptive terms, the plea was in error.

Under these circumstances, it is illogical to say the citation errors mean defendant was not convicted of a substantive offense. A substantive offense is not a number referring to a statute; it is the conduct the statute describes. Despite the errors, there is no room for any doubt that defendant was charged with the conduct described in section 273.5, subdivision (a), with a prior listed in subdivision (e)(1), or that he pleaded guilty knowing he was charged with engaging in that conduct with that prior.

Defendant cites People v. Wallace (2003) 109 Cal.App.4th 1699, but that case is distinguishable. There, the defendant was charged with assault ( 245, subd. (a)(1)), robbery ( 211), and battery ( 242). The information also alleged that the assault was a hate crime as defined in former section 422.75. The hate crime statute, now found in section 422.55 and following, criminalizes interference with civil rights if done with a discriminatory intent. It also increases penalties for other crimes if committed with a discriminatory intent. Wallace agreed to plead guilty to an information amended to allege only a violation of section 422.7. (People v. Wallace, supra, 109 Cal.App.4th at p. 1701.) Section 422.7 is a penalty-enhancement provision. Its effect is to convert certain misdemeanors into wobblers (offenses punishable by imprisonment in a county jail or in the state prison) when committed with a discriminatory intent. The Court of Appeal reversed the conviction, holding that the plea was a legal nullity because the crime of violating section 422.7 did not exist. (People v. Wallace, supra, at p. 1704.)

Wallaces plea was a nullity because the information it was based on was unintelligible. An information referring to section 422.7 makes sense only if it also charges a violation of some substantive offense committed with a discriminatory intent. An accusatory pleading mentioning only section 422.7 might communicate that the accused had committed a crime with a discriminatory intent, but it would not tell the accused what the alleged crime was. Here, by contrast, the penalty provision cited in the complaint ( 273.5, subd. (e)) applies to violations of section 273.5 alone. Section 273.5, subdivision (e)(1), begins, Any person convicted of violating this section for acts occurring within seven years of a previous conviction . (Italics added.) There can be no mistake about what the underlying offense is in this case. More importantly, as we have explained, the descriptive terms in the complaint and the trial courts comments clearly identified the substantive crime to which defendant was pleading guilty.

Defendant cites a number of cases for the uncontroversial propositions that a penalty enhancement is not a substantive crime and that a defendant cannot be punished unless convicted of a substantive crime. We need not discuss these cases, since our conclusion is that defendant was charged with and convicted of a substantive crime despite the citation errors. We also need not discuss the Peoples argument that defendants plea estops him from asserting that his conviction is invalid, since we are affirming the judgment on other grounds.

Although the parties have not requested it, for the sake of clarity, we will order the trial court to amend the abstract of judgment to correct the citation error. (See, e.g., People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 [Court of Appeal amended abstract of judgment to correct trial courts reference to wrong subdivision when imposing enhanced sentence following guilty plea].)

DISPOSITION

The judgment is affirmed. The trial court shall amend the abstract of judgment to state that defendant was convicted pursuant to Penal Code section 273.5, subdivisions (a) and (e)(1); the trial court shall forward the amended abstract to the appropriate authorities.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Gomes, J.

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^[1]Statutory references are to the Penal Code unless indicated otherwise.