P. v. Delagarza
Filed 10/17/13 P. v. Delagarza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Defendant
and Appellant,
v.
THEO N. DELAGARZA,
Defendant
and Appellant.
E056306
(Super.Ct.No.
FSB1003496)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
William Jefferson Powell IV, Judge.
Affirmed.
Gregory
S. Cilli, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall
D. Einhorn, and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant
Theo Delagarza is serving three years in local custody after pleading guilty to
assaulting a man with a knife and violating probation twice. Defendant argues he is entitled to
pre-sentence conduct credits because, although he initially waived the right to
receive them as part of the initial plea bargain, the trial court later altered
the terms of his probation to allow for conduct credits if he successfully
completed the Inroads program in county jail.
We conclude that defendant is not entitled to the conduct credits
because, although he completed the Inroads program, he violated his probation only
a day after his release, and thus defeated the entire objective of the
agreement under which he was to receive the conduct credits.
and Procedure
On
August 18, 2010, defendant got into a fight with a man. Defendant attempted to stab the man in the
stomach with a knife but missed. He did,
however, succeed in slashing the man in the neck.
On
October 6, 2010, the People charged defendant with
subd. (a))
with a deadly weapon (§ 245, subd. (a)(1)).
The People alleged that defendant personally used a deadly weapon during
the attempted murder (§ 12022, subd. (b)(1)) and that he personally inflicted
great bodily injury during both crimes (§ 12022.7, subd. (a)).
On
November 18, 2010, defendant pled guilty to an added count, assault by means of
force likely to produce great bodily
At
sentencing on December 22, 2010, the trial court
placed defendant on probation for three years, and ordered him to serve 365
days in jail. The court awarded 124 days
of actual pre-sentence custody credit but awarded no conduct credits. This is because defendant waived “all
4019 credits prospectively and retroactively†as part of the plea
agreement. The trial court orally
discussed this waiver with defendant and clearly explained that “if you violate
probation and you get sentenced to state
prison you won’t get any conduct credits then either. You’re giving them up for all time,
okay.†After repeating this explanation,
giving examples of how it would work if defendant were to violate his
probation, and ascertaining that defendant understood, the trial court took
defendant’s waiver.
On
December 5, 2011, defendant’s probation was revoked. On that date, defendant admitted to each of
the probation violations listed in the revocation petition. Pursuant to a stipulation between defendant
and the People, defendant waived all previous custody time except for the most
recent 12 days. The trial court
probation, but modified it so that defendant would be credited with both the 12
days he had just served and section 4019 conduct credits of 12 days. The court ordered that defendant would
accumulate section 4019 credits “from this point forward,†but that he would
have to petition the court for release and adjustment of credits to include the
section 4019 days. Defendant was to
petition the court after successfully completing the Inroads program in the
county jail.
title="">[4]
At
a probation review hearing held on April 3, 2012, the trial court
have been completed, in that he had completed the Inroads program and the jail
time. The court ordered defendant
released from custody early and gave him credit for 365 days of time
served. The court did not award
defendant any conduct credits. Neither
defense counsel nor the People mentioned the conduct credits. Probation was scheduled to terminate on
December 21, 2013.
Just
three days later, on April 6, 2013, the People filed a probation revocation
petition, in which they alleged defendant was found on April 4, 2013 in a
vehicle with a known gang member, thereby violating the condition of his
probation that he “Not associate with persons known to defendant to be gang members
or frequent places of known gang activity.â€
Defendant also failed to provide law enforcement with a copy of the
terms and conditions of his probation.
The
probation revocation hearing was held on May 7, 2012. Defendant admitted the violation. Defense counsel asked for section 4019
conduct credits to be calculated. The
trial court
title="">[6] referred to the original plea agreement in
which defendant waived all conduct credits prospectively and retroactively, and
so declined to award any conduct credits whatsoever. The court revoked and terminated defendant’s
probation and ordered him to serve the previously suspended term of three
years, in local custody, with credit for 399 days actual and zero conduct
credits. This appeal followed.
Defense
counsel asked the trial court to put on calendar a hearing regarding the
recalculation of the credits in this case.
On October 31, 2012, the trial court
credits. The trial court denied
defendant’s motion.
Defendant
contends he is entitled to section 4019 conduct credit beginning with the 12
days from November 23, 2011 to December 5, 2011, and ending with his sentencing
hearing on May 7, 2011. This is because
on December 5, 2011, the trial court modified the conditions of probation to
award him 12 days of conduct credits, plus future credits if he successfully
completed the Inroads program.
The People’s
response is twofold. First, the trial
court on December 5, 2011, had no authority to release defendant from the
waiver of conduct credits that defendant made as part of the original plea
agreement. Second, the trial court on
December 5, 2011, made the conduct credits conditional upon defendant’s successful
completion of probation, not just the Inroads program, and defendant did not
successfully complete his probation.
It appears to us
that that the trial court was not without authority to modify Term One of
defendant’s probation, despite its potential nullification of the waiver in the
plea agreement, precisely because the People and defendant specifically
negotiated and stipulated to this very arrangement. (See People
v. Segura (2008) 44 Cal.4th 921, 931 [“‘Once the court has accepted the
terms of the negotiated plea, “[it] lacks jurisdiction to alter the terms of a
plea bargain so that it becomes more favorable to a defendant unless, of
course, the parties agree.â€
[Citation.]’ [Citations.]â€].) Here, as a prelude to modifying the terms of
defendant’s probation to include the possibility that he could earn back the
section 4019 conduct credits that he had previously agreed to waive, the trial
court on December 5, 2011, referred to “a series of negotiations between the
People and the defense.†The court also
stated that “it’s stipulated between the parties†that defendant could earn
conduct credits if he successfully completed the Inroads program.
We find it a more
difficult question whether defendant fulfilled his part of the bargain, and
thus earned the right to receive section 4019 conduct credits, when he
completed the Inroads program but violated his probation only a day after his
release from custody. As set forth more
fully above, the trial court made the following statements at the December 5,
2011, hearing to describe the new agreement between the parties regarding the
circumstances under which defendant was to earn the privilege of petitioning
the court for conduct credits.
“Upon successful
completion of Inroads you’re then to -- you’ll notify your counsel, and at that
point they’ll set another court date.
You’ll be released from custody and credits readjusted at that
time.†This contemplates the following
scenario: 1) defendant would complete Inroads; 2) his counsel would petition
the trial court for release and conduct credits; and 3) at a hearing in
response to that petition the court would release defendant and calculate his
credits to include conduct credits. What
actually happened was: 1) defendant completed Inroads; 2) the court held a
probation review hearing on April 3 at which it ordered defendant released and
gave him credit for 365 days actually served, with no mention by any of the
parties of conduct credits; 3) defendant violated probation on his first full
day of release; and 4) at the probation revocation hearing on May 7, 2012, the
trial court sentenced defendant to three years in local custody, with credit
for time actually served. Defense
counsel for the first time asked for the conduct credits but the trial court denied
them per the original plea agreement; none of the parties brought up the
revised probation terms of December 5, 2011.
At the December 5,
2011, hearing, the court also told defendant, “You understand that you waive
credits today? If you get in trouble,
you don’t finish Inroads, you’re never going to get those credits back. Do you understand that?†The People argue this was the trial court
telling defendant he would lose the conduct credits if he did not successfully
complete the terms of his probation.
Finally, the trial
court reiterated the revised terms of probation. “The defendant is ordered to attend the
Inroads program the county jail offers; to successfully complete that. Upon completion of the Inroads program the
defendant is entitled to petition the court for release from custody, at which
time credits will be readjusted to indicate a total credits of both actual and
conduct of 365 days.â€
There is no
indication in the record that defense counsel petitioned the trial court for
the conduct credits after defendant completed Inroads, and no discussion of
these credits in the transcript of the April 3, 2012, hearing. An interesting dilemma would have arisen had
the trial court, prior to releasing defendant, recalculated his credits to
include conduct credits, given that defendant subsequently violated his
probation. However, the court did not
recalculate the credits at the time it released defendant from jail with 20
months remaining on his probation, and we find this to be a factor in our final
determination.
After
reviewing the record on appeal, we take away that the People and the defense
engaged in considerable off-the-record negotiations in an effort to give
defendant the opportunity to avoid a strike and a
defendant to reject the gang lifestyle and turn his life around. These efforts began with the initial plea
bargain, continued through the first probation violation and finally ended
after defendant violated his probation for the second time. The initial negotiations and plea agreement
resulted in defendant pleading guilty to a non-strike felony instead of the two
strike felonies with which he was initially charged—attempted murder and
assault with a deadly weapon, with personal use and great bodily injury
enhancements. One of the terms of
probation, as agreed to in the plea bargain, was that defendant have his gang
tattoos removed. At the urging of the
People, the trial court found “unusual circumstances†allowing it to grant
probation rather than a state prison term, given defendant’s “youthfulness and
the fact that he had no significant prior criminal offenses.†On the face of the plea agreement is written
in capital letters, bookended by double asterisks, “** NON-STRIKE – NO DEADLY
WEAPON**†to ensure that, despite testimony to the contrary during the
preliminary hearing, this offense could never be used as a strike offense in
the future.
title="">[8]
Even after
defendant violated probation the first time, the trial court commented on the
People’s continued willingness to work with defendant to avoid serious
consequences. At the beginning of the
December 5, 2011, parole revocation hearing at which it modified defendant’s
probation terms to allow him to earn conduct credits, the trial court
stated: “In this matter my understanding
there’s been a series of negotiations between the People and the defense. The People are of the mind that it would not
be in the best interest of society to send you to state prison, and so they
worked out an arrangement to keep you here locally and hopefully get the life
skills necessary to stay out of trouble.â€
Later
in that same hearing the prosecutor emphasized the additional opportunity it
was giving to defendant to change his life:
“And your Honor, I would just ask the Court to note, and I expressed
thanks to the Court—Mr. Delagarza, the Court didn’t have to agree to this and
so the Court is giving you an opportunity—this judge is giving you the
opportunity to make things right. You
have your mom and your brother here today, and you have a D.A. here that’s
supporting you, trying to get you squared away.
If you come back, you’ll disappoint everybody in this courtroom.â€
The
defendant replied “I want to thank you for giving me another opportunity in
getting out in society.â€
Given: 1) the
entirety of the parties’ and the court’s continued efforts to shield defendant
from suffering the full, harsh consequences of the first crime he committed as
a juvenile; 2) that all participants in these proceedings contemplated giving
defendant one last opportunity to avoid state prison if he would conform his
actions to the expectations of society; 3) the trial court’s words to
defendant, “If you get in trouble, you don’t finish Inroads, you’re never going
to get those credits back,â€; and 4) especially that the trial court did not in
fact recalculate defendant’s credits when he was released, we can only conclude
that an essential, if not perfectly enumerated, condition precedent to having
defendant’s credits recalculated to include conduct credits was that he
actually fulfill each of his probation conditions for the remainder of the
probation term. This he did not do, and
so is not entitled to conduct credits.
>
Disposition
The trial court’s
ruling declining to award section 4019 conduct credits is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
KING
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All section references are to the Penal Code
unless otherwise indicated.
name="_ftn2" title=""> [2] Hon. Bryan F. Foster, presiding.
