P. v. Engram

Filed 5/15/07 P. v. Engram CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Mark Engram appeals from a judgment entered after the superior court revoked a probationary sentence following a contested hearing on the alleged probation violation and imposed a sentence of seven years in state prison. Defendant does not challenge the order revoking his probation but contends the trial court misunderstood its sentencing options and requests that the matter be remanded for resentencing. The Attorney General acknowledges that [t]he record of the sentencing hearing is arguably ambiguous and, consequently, a remand for the trial court to have the opportunity to articulate the reasons for its sentencing decision appears to be appropriate. Although we share the Attorney Generals skepticism that the trial court misunderstood its options, we agree there is an ambiguity and that the prudent course is to remand for resentencing.

Background

In July 2004, defendant was charged with possession for sale of cocaine base. (Health & Saf. Code,  11351.5, subd. (a).) It was also alleged that defendant had five prior convictions and had served three prior prison terms. (Pen. Code,  667.5, subd. (b).) Pursuant to a plea agreement, defendant pleaded no contest to the felony possession for sale of cocaine base (Health & Saf. Code,  11351.5) and admitted a single prior drug trafficking conviction (Health & Saf. Code,  11370.2, subd. (a)). Pursuant to the agreement, the court suspended imposition of sentence and placed defendant on probation for five years.[1]

On December 12, 2005, the district attorney filed a petition to revoke probation, alleging that defendant had violated the terms of his probation by possessing cocaine for sale. Following a contested revocation hearing, the court found that defendant had violated his probation. On July 18, 2006, the court sentenced defendant to the midterm of four years for the violation of Health and Safety Code section 11351.5 plus a consecutive term of three years for the prior conviction enhancement. Defendant filed a timely notice of appeal.

Discussion

Since defendant does not challenge the probationary sentence entered upon his 2004 conviction or the order revoking his probation based upon the 2005 drug offense, it is unnecessary to relate the facts concerning those offenses. Following the courts determination that defendant had violated his probation, the probation department submitted a report to the trial court recommending that defendant be sentenced to state prison because [a]lthough the defendant was on probation and parole, he appears to have been continuing with the same lifestyle of drug dealing and has performed poorly on previous probation grants. . . . [] The defendant has not displayed any signs of progress while on probation. At the sentencing hearing on July 18, 2006, the district attorney stated the Peoples position that [defendant] should receive five years state prison. In fact, I would be asking for more than that. [] Based upon the evidence produced at the hearing and his criminal history and his eight-year exposure, we would be asking for more than five years state prison at this time. Erik Swenson, the defense attorney, then began, I had received the report, but notwithstanding the history, I would ask you to give him the low term or at the most but he was then interrupted by the court with the following: THE COURT: Here is the deal. Let me tell you this, Ive got here: [] He is on parole and gets 12 months. I have 52 rocks of cocaine, a whole bag that I saw. And he testified and he said he saw him pick it up and that is what changed the whole dynamics of the hearing. [] He denied it, but he testifies to it. And then I get probation calling his ex-wife and saying she is just not going to lie for him anymore. And the deal was five years state prison. All right? So there is nothere was not going to be any court intervention and there was going to be a hearing. [] The sentencing rules now I have left with where I have with his serious criminal history and circumstances in mitigation is zero, I look at it and I have to sentence him according to sentencing rules. [] As I see it, there is no basis for me to strike the three-year prior. There is no basis. I have nonow I have no basis to do that. He did not give me an option. There is no option. There really is no option. Once he has done a hearing, I have to go strictly by the sentencing rules, so I have no option. [] So, that being the case, probation is denied. The defendant will be sentenced on count 1 to the midterm of four years state prison. [] He will be sentenced consecutive to that to three years state prison for the three-year prior. For a total term of seven years in state prison at 50 percent. . . . What happens is, Mr. Swenson, you know, I dont have options once they decide to have a hearing. Defense counsel responded, Im aware of the courts position, your honor.

Defendant contends on appeal that the courts remarks indicated its belief that because he had contested the probation violation, sentencing rules by which it was bound deprived the court of discretion to reinstate probation or to strike the prior conviction sentence enhancement. He also argues that the court indicated it was impermissibly punishing him for having exercised his constitutional right to a hearing on the probation violation, and that the court erred in failing to provide a statement of reasons for imposing a prison term after a revocation of probation. The Attorney General acknowledges that despite the probation violation the court retained the discretion to replace defendant on probation (Pen. Code,  1203.2, subds. (b), (c); Cal. Rules of Court, rule 4.435(a); People v. Hawthorne(1991) 226 Cal.App.3d 789, 792, 795) and was required to provide a statement of reasons for its sentencing decision (Pen. Code,  1170, subd. (c); People v. Hawthorne, supra, pp. 792, 795). The Attorney General does not dispute that the court retained discretion to strike the enhancement. (See People v. Meloney (2003) 30 Cal.4th 1145, 1165; People v. Hard (2003) 112 Cal.App.4th 272, 283-284.)

We agree with the Attorney General that the trial courts remarks at the sentencing hearing may well be understood to have been an explanation of why the court felt the sentence it was imposing was appropriate in view of defendants lengthy history of repeated violations while on probation and parole. The court may well have meant that defendants continuing violations left it no option in the exercise of its discretion but to deny further probation and impose the sentence it did. Nonetheless, we also agree that the remarks can be read to indicate that the court felt that under sentencing rules it had no discretion but to deny probation and to deny the motion to strike the enhancement. We therefore shall adopt the suggestion that the matter be remanded for a new sentencing hearing at which the court can clarify its reasoning. (People v. Meloney, supra, 30 Cal.4th at p. 1165; People v. Hard, supra, 112 Cal.App.4th at pp. 283-284.) The trial court should of course exercise its discretion as it deems appropriate under all of the circumstances, but without regard to the fact that defendant chose to contest the probation revocation allegations.

Disposition

The order revoking defendants probation is affirmed and the matter is remanded for resentencing.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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[1] Defendant also admitted violating probation in an unrelated case, for which he was sentenced to time served of 16 months.