P. v. Frazier
Filed 6/24/13 P. v. Frazier CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
AARON FRAZIER,
Defendant and
Appellant.
H037425
(Monterey
County
Super. Ct.
No. SS101800)
In this
timely appeal, Aaron Frazier (appellant) challenges the trial court's refusal
to reinstate him on probation following a contested probation revocation
hearing. Appellant argues that it was an
abuse of discretion for the court not to reinstate him on probation; he asserts
that this abuse of discretion requires reversal of the judgment. For reasons that follow, we affirm the
judgment.
Proceedings Below
Appellant
was charged by information filed December
7, 2010, with second degree robbery (Pen. Code, § 211, count one),
and grand theft from the person of another (§ 487, subd. (c), count two).
appellant had served a prior prison term within the meaning of section 667.5,
subdivision (b).
On December
22, 2010, appellant entered into a plea
bargain under the terms of which he agreed to plead guilty to the grand
theft charge and admit that the prior prison term allegation was true, in
exchange for a promised disposition of probation, with a three year prison term
imposed but with execution suspended.
Subsequently, at the sentencing hearing held on February 18, 2011, the court admitted appellant
to probation for three years on the condition, among other things, that he
serve a 365 day county jail sentence with a surrender date of March 30, and
report to his probation officer within three days of the sentencing
hearing. The court imposed a three year
prison term but suspended execution of the sentence pending appellant's
successful completion of probation.
Thereafter,
on March 29, 2011, the probation department filed a petition alleging, among
other things, that appellant violated his probation by failing to report to
probation within three days of his sentencing
hearing, failing to report for an appointment when directed so to do by his
probation officer, leaving Monterey County without permission and failing to
surrender to the county jail to serve his 365 day sentence.
Following a
contested probation revocation hearing the court found true the allegation that
appellant had violated his probation by failing to report to probation. On September
23, 2012, the court terminated appellant's probation and ordered
execution of the previously imposed prison sentence of three years. The court awarded appellant 148 days of
presentence custody credits.
Facts and Proceedings Below
Appellant's Conviction
Briefly, we
summarize the facts underlying appellant's convictions.
Santos
Manzanara, a taxi cab driver, reported to police that he drove appellant to Salinas. According to Manzanara, appellant told him
that he would pay him when he got to his sister's apartment in Salinas. Once they arrived in Salinas,
appellant entered his sister's apartment, came back out and told Manzanara that
he did not have the money. When
Manzanara took out his cellular telephone to call the police, appellant grabbed
the telephone out of Manzanara's hand and ran away. The cab fare was approximately $50. Manzanara reported the crime to the police at
approximately 5:44 a.m.
Initially,
appellant pleaded not guilty to the charges.
However, on December 22, 2010,
appellant changed his plea. He signed
and initialed a "Waiver of Rights
plea of guilty/no contest" form (hereafter waiver form) that stated
the terms of the negotiated disposition.
Specifically, the form reflected that appellant was "pleading
Guilty/No Contest to the offense(s) of: PC 487 GRAND THEFT PERSON [ON CONDITION
OF 3YR ESS; APPEL[L]ATE WAIVER; AND O.R. RELEASE W/CRUZ WAIVER]." Appellant was to admit "the following
enhancements and/or priors: 1 PRIOR
PRISON TERM PER 667.5 (b)[.]" In
the waiver form, appellant was advised that the maximum sentence he faced was
four years in state prison; and that if he violated any term of his probation
he could "be sent to state prison for the maximum term allowed by law . .
. . "
At the
change of plea hearing, defense counsel outlined the plea agreement for the
court. Specifically, defense counsel
stated that appellant "would plead guilty to an added count of 487, . . .
for an agreed to execution of sentence suspended for three years. He would also give up his right to appeal the
plea and the sentence. And the District
Attorney would agree to release [appellant] OR pending sentencing, with a Cruz
waiver."
title="">[3] The court asked defense counsel—"Now, is
it contemplated that if the defendant violates probation and is sent to prison
that he can't appeal that either?"
Defense counsel asked Judge Duncan, "So, he couldn't appeal the
violation of probation finding?"
Judge Duncan replied, "That's my question," to which defense
counsel replied, "Oh no, I'm just trying to get the question. Yes, your Honor."
The waiver
of rights form contains an "ATTORNEY'S STATEMENT" that reads "I
am the attorney of record and I have explained each of the above rights to the
defendant, and have explained and discussed the facts and possible defenses to
the charge(s), and the possible consequences of a plea of guilty or no
contest. I concur in defendant's decision
to waive the above rights and to enter a plea of Guilty/No Contest. I have witnessed the reading of this form by
the defendant and his/her initialing and signing this form." Defense counsel's signature appears on the
form underneath this statement.
At the
change of plea hearing, Judge Duncan confirmed with appellant that he read then
signed the entire waiver form and that he gave up his rights to appeal. Specifically, Judge Duncan confirmed with
appellant that he was "in this particular agreement, giving up your right
to appeal any actions by the Court in terms of sentencing, either now or in the
future? Do you agree with
that?" Appellant replied,
"Yes, sir." Thereafter,
appellant entered a no contest plea to the grand theft count and admitted the
prior prison term allegation. Judge Duncan
asked appellant "you agree that if the court releases you on your own
recognizance and you fail to comply with the terms and condition, such as
appearing at probation and getting interviewed and also returning to court on
February the 16th, that the Court would not be bound by the plea agreement, the
Court could send you to prison if the Court felt that was
appropriate?" Appellant replied,
"Yes, sir."
Subsequently,
on February 16, 2011, appellant failed to appear for sentencing. The minute order from that hearing states
that appellant's "car broke down."
Judge Duncan issued a bench warrant, but ordered it held until February
18, 2011.
On February
18, 2011, appellant appeared for sentencing.
As noted, pursuant to the plea agreement, the court admitted appellant
to probation and imposed but suspended execution of a three year prison term
consisting of the mid-term of two years plus one year for the prison
prior.
Probation Revocation Hearing and Sentencing
As noted ante,
the probation department cited four probation violations—appellant failed to
report to probation within three days of his sentencing hearing, failed to
report for an appointment when directed so to do by his probation officer, left
Monterey County without permission and failed to surrender to the county jail
to serve his 365 day sentence.
At the
contested probation revocation hearing, appellant's probation officer testified
that appellant did not report to her within three days of his release after the
sentencing hearing held on February 18, 2011.
The officer testified that she called appellant on March 10, 2011, to
remind him that he was supposed to report to probation. Appellant told her that he was in San
Francisco and that he was having transportation problems. The officer was aware that appellant lived in
Alameda County and directed him to report by March 15, 2011. Appellant did not report as directed.
Judge
Butler found that appellant was in violation of his probation based on his
failure to report to the probation officer.
The court did not find the allegation that he failed to surrender to the
jail to be true.
Subsequently,
at the sentencing hearing held on
September 23, 2011, Judge Butler told counsel that she was "leaning
towards imposing the sentence that was suspended." Appellant, both personally and through
counsel, argued for reinstatement of probation.
Judge Butler was not persuaded by either counsel's or appellant's pleas
for reinstatement. She stated her reasons
for terminating probation and ordering execution of the prison sentence as
follows: "My thoughts are this, Mr.
Frazier, I'm going to sentence you to prison.
I don't want to. This doesn't
make me happy. This should have never --
you should have taken the lower prison term at the time of sentencing. Looking at your criminal history, looking at
this . . . disposition was not in your best interest. I don't fault anyone for giving you a chance,
but you were sentenced to serve 365 days back in February. You didn't turn yourself in. You didn't do your jail term. You didn't report. It just --
[¶] At this point, probation is
denied. The Court is going to impose[]
the previously executed [sic]
sentence . . . ."
name="_ftnref4" title="">[4]
Appellant
argues on appeal that the court's statement of reasons is premised largely on
Judge Butler's disagreement with the original plea bargain, which had been
approved by a different judge in violation of the principle of comity. Furthermore, he asserts that other than this
perception that the original deal was not appropriate for him, the only stated
reasons for rejecting reinstatement of probation was the fact that he did not
report, or serve his jail time.
Appellant contends that the conclusion that he did not serve his jail
time is contrary to the record and the express finding by Judge Butler at the
revocation hearing. Appellant argues,
"The remaining fact, that he did not report, while correct, merely
restates the rather de minimus violation of probation already found by the
court." Without citation to
authority, appellant asserts "[i]t is axiomatic that a proper exercise of
sentencing discretion cannot be made where the only fact considered is a minor
probation violation, without any attention to critical mitigating factors militating
toward reinstatement of probation i.e., the absence of any new law violations,
the colorable reason for not reporting (lack of transportation) and [his]
efforts, by turning himself in to Bay Area police, to get himself transported
in order to report and surrender."
Discussion
While
acknowledging that he waived his appeal rights, citing to People v. Vargas (1993) 13 Cal.App.4th 1653 (Vargas), appellant argues that "such waivers of the right to
appeal under a plea agreement, while valid as to any challenges to a sentence
imposed pursuant to a plea bargain, do not include waiver of error occurring
after the waiver is entered." In
this case, we are not persuaded that Vargas
is controlling.
"Because
a 'negotiated plea agreement is a form of contract,' it is interpreted
according to general contract principles.
[Citations.] Acceptance of the
agreement binds the court and the parties to the agreement. [Citations.]
' "When a guilty [or nolo contendere] plea is
in exchange for specified benefits such as the dismissal of other counts or an
agreed maximum punishment, both parties . . . must abide by the terms of the
agreement." '
[Citations.]" (
v. Segura (2008) 44 Cal.4th
921, 930-931.)
"[I]t
is well settled that a plea bargain may include a waiver of the right to
appeal." (People v. Buttram (2003)
30 Cal.4th 773, 791 (Buttram); accord, People v. Panizzon (1996)
13 Cal.4th 68, 80, 82, (Panizzon)
A defendant may waive the right to appeal in writing or orally in
court. (Panizzon, at p. 80.)
In general,
"[a] broad or general waiver of appeal
rights ordinarily includes error occurring before but not
after the waiver because the defendant could not knowingly and intelligently
waive the right to appeal any unforeseen or unknown future error.
[Citation.]" (People v. Mumm (2002)
98 Cal.App.4th 812, 815.) But, in Panizzon,
our Supreme Court held that when a defendant agrees to a plea bargain that
includes a specified sentence, and that sentence is actually imposed, the
defendant's specific waiver of the right to appeal from the sentence
will foreclose appellate review thereof.
In Panizzon, the defendant
received a written advisement of his appellate rights and had agreed, in
writing, to waive his right to appeal the sentence. (Panizzon, supra, 13 Cal.4th at pp.
82, 85–86.) The court explained: "Not only did the plea agreement in this
case specify the sentence to be imposed, but by its very terms the waiver of appellate
rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate
review of an integral element of the negotiated plea agreement, as opposed to a
matter left open or unaddressed by the deal. . . . [B]oth the length of the sentence and the
right to appeal the sentence are issues that cannot fairly be characterized as
falling outside of defendant's contemplation and knowledge when the waiver was
made . . . ." (Id. at pp.
85–86.)
In
case involving a challenge to the award of custody credits (
"that the general waiver of the right of appeal d[oes] not include error
occurring after the waiver because it was not knowingly and intelligently
made. Such a waiver of possible future
error does not appear to be within defendant's contemplation and knowledge at
the time the waiver was made. Any person
in defendant's position would reasonably know that such a general waiver of
appeal rights obviously included error occurring up to the time of the waiver;
however, in our view, it is not reasonable to conclude that the defendant made
a knowing and intelligent waiver of the right to appeal any unforeseen or
unknown future error . . . ." (Id.
at p. 1662.)
In Panizzon,
supra, 13 Cal.4th 68, the plea agreement specified the sentence and
required a waiver of appellate rights that specifically extended to any right
to appeal such sentence. (Id. at
pp. 85–86.)
Here, not
only did appellant waive his appeal rights in the written waiver, the court
specifically clarified with appellant that he was giving up his right to appeal
any actions in terms of sentencing "in the future." Appellant agreed that would be the case; the
record of the change of plea hearing indicates a knowing and intelligent waiver
of the right to appeal future sentencing error.
We note that appellant has an extensive criminal history including seven
felony convictions and one misdemeanor conviction. He has been granted probation six times and
violated his probation approximately six times.
At least twice, his probation was revoked and he was sentenced to serve
a prison term. In addition to those
prison terms he has served two prison terms for different offenses; and has
numerous violations of parole. In other
words, appellant is not a stranger to the criminal justice system, which
indicates to this court that appellant is well versed in the rights that he has
in this system and understands that any violation of probation could result in
imposition of a prison term.
Furthermore,
it is important to note that appellant is not arguing that he did not violate
his probation. Rather, he is challenging
the reasons given for not reinstating him on probation and ordering execution
of the previously imposed but suspended prison term. That being said, "[a] party in a
criminal case may not, on appeal, raise 'claims involving the trial court's
failure to properly make or articulate its discretionary sentencing choices' if
the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th
745, 751 (Gonzalez), citing People v. Scott (1994) 9 Cal.4th 331,
353 (Scott).) The Scott
rule of forfeiture applies to cases, such as the present one, where it is
asserted that the trial court's stated reasons for its discretionary sentencing
choice allegedly do not apply to the particular case. (Gonzalez,
supra, 31 Cal.4th at p. 751.)
The
rationale for the rule is elementary: "[C]ounsel is charged with
understanding, advocating, and clarifying permissible sentencing choices at the
sentencing hearing[, and r]outine defects in the court's statement of reasons
are easily prevented and corrected if called to the court's
attention." (Scott, supra, 9
Cal.4th at p. 353.) As long as there is
a meaningful opportunity for counsel to object to purported deficiencies
in the trial court's statement of reasons for its sentence choices during the
sentencing hearing, counsel's failure to do so forfeits any appellate claim of
error.
There is no
indication that defense counsel was
precluded from objecting to the court's reason for refusing to reinstate
probation immediately after the court stated that reason. The court did not immediately declare a
recess after committing appellant to state prison.
credits and restitution fines. Thus,
defense counsel had ample opportunity to raise the issue of the court's stated
reasons for not reinstating appellant on probation.
Even if
appellant's claim that the trial court abused its discretion in refusing to
reinstate him on probation were properly before us, we would reject it. A trial court's sentencing decision is
reviewed for abuse of discretion. (People
v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) "[D]iscretion is abused whenever the
court exceeds the bounds of reason, all of the circumstances being
considered." (People v. Giminez
(1975) 14 Cal.3d 68, 72.) "The
trial court's sentencing discretion must be exercised in a manner that is not
arbitrary and capricious, that is consistent with the letter and spirit of the
law, and that is based upon an 'individualized consideration of the offense,
the offender, and the public interest.'
[Citation.]" (Sandoval,
supra, at p. 847.)
Initially,
we reject any suggestion by appellant that Judge Butler's decision violated the
principle of comity.
name="_ftnref8" title="">[8]
general rule one trial judge cannot reconsider and overrule an order of another
trial judge. (People v. Woodard
(1982) 131 Cal.App.3d 107, 111.) Here, however,
simply put, Judge Butler did not overrule or reconsider Judge Duncan's
ruling. Judge Duncan sentenced appellant
to three years in state prison execution of sentence suspended. Judge Butler found a violation of probation,
terminated appellant's probation, determined that reinstatement of probation
was not appropriate and ordered that appellant serve the three year prison term
that Judge Duncan imposed. As such, no
violation of the principle of comity was involved.
"
'Probation is an act of clemency. . . .' "
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822,
831.) The court may modify, revoke, or
terminate probation if the probationer has violated any term or condition of
probation "if the interests of justice so require." (§ 1203.2, subd. (b).) In considering whether to revoke probation,
the court's inquiry is directed "to the probationer's performance on
probation." (People v. Beaudrie
(1983) 147 Cal.App.3d 686, 691.)
"Thus the focus is (1) did the probationer violate the conditions
of his probation and, if so, (2) what does such an action portend for future
conduct?" (Ibid.) The inquiry addresses whether a probationer
can conform his or her conduct to the law.
(Ibid.)
The trial
court is vested with broad discretion in determining whether to
revocation of probation. (People v. Jones (1990) 224 Cal.App.3d
1309, 1315.) In this situation, the
trial court's decision to revoke probation is reviewed for an abuse of
discretion. (People v. Rodriguez
(1990) 51 Cal.3d 437, 443 (Rodriguez); People v. Downey (2000) 82
Cal.App.4th 899, 909–910.) "When
the question on appeal is whether the trial court has abused its discretion,
the showing is insufficient if it presents facts which merely afford an
opportunity for a difference of opinion.
An appellate tribunal is not authorized to substitute its judgment for
that of the trial judge." (People
v. Stewart (1985) 171 Cal.App.3d 59, 65.)
In the absence of a clear showing that its decision was arbitrary or
irrational, a trial court should be presumed to have acted to achieve
legitimate objectives and, accordingly, its discretionary determinations ought
not to be set aside on review. (People
v. Zaring (1992) 8 Cal.App.4th 362, 378.)
More importantly, " 'only in a very extreme case should an
appellate court interfere with the discretion of the trial court in the matter
of denying or revoking probation . . . .' " (Rodriguez, supra, 51 Cal.3d at p.
443.) Further, the burden of
demonstrating an abuse of the trial court's discretion rests squarely on
appellant. (People v. Vanella
(1968) 265 Cal.App.2d 463, 469.)
Here,
appellant negotiated a plea agreement whereby the trial court imposed but
suspended a three-year prison term in exchange for three years of formal probation. As part of appellant's plea, he agreed that
if he "violate[d] any term or condition of [his] probation, [he could] be
sent to state prison." It should be
evident to appellant, as it is to this court, that under the terms of the plea
agreement negotiated by appellant, any violation of probation could
result in the immediate execution of the imposed but execution suspended prison
term. Having received the benefit of his
bargain—probation, appellant cannot repudiate an agreed upon component of his plea. (See People v. Haney (1989) 207
Cal.App.3d 1034, 1037–1038 [a plea bargain is interpreted similar to a
contract].) In general, that should be
the end of the discussion.
Appellant's
description of his probation violation as "minor" adds little to his
argument that the court abused its discretion in refusing to reinstate him on
probation. We reiterate to appellant,
" 'Probation is a form of leniency which is predicated on the notion that
a defendant, by proving his ability to comply with the requirements of the law
and certain special conditions imposed upon him, may avoid the more severe
sanctions justified by his criminal behavior.
Once given the opportunity for lenient treatment the choice is his as to
whether he merits being continued on probation.' [Citation.]" (People
v. Burks (1998) 66 Cal.App.4th 232, 237.)
Any violation of probation can be serious depending on the circumstances
of the individual case.
Here,
appellant had an extensive criminal history, which as noted
probation approximately six times before.
It is quite apparent to this court that Judge Butler's comments indicate
that she was aware that this was not appellant's first probation violation and
questioned whether the original plea bargain was in appellant's best interests
given his past behavior on probation.
That does not mean that Judge Butler was motivated to refuse to
reinstate him on probation because she disagreed with this disposition as appellant
asserts. Faced with another probation
violation, the trial court's decision to revoke probation in this case was not
arbitrary or irrational.
Placing a
defendant on probation constitutes "an act of clemency and
grace." (Rodriguez, supra,
51 Cal.3d at p. 445.) Logically, it
follows therefore that reinstituting probation, following violation of the
terms of that probation, is also an act of clemency and grace. Here, appellant's track record shows his
inability to comply with the law and constitutes ample grounds for revocation
of probation and commitment to state prison.
This is not the extreme case where we would interfere with the
discretion of the trial court.
Disposition
The
judgment is affirmed.
______________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
name="_ftn1" title="">[1] All unspecified section references are
to the Penal Code.
name="_ftn2" title="">[2] The facts are taken from the probation
officer's report and the transcript from the preliminary examination.
