Filed 9/10/18 P. v. Mende CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JOSE MARCOSCRUZ MENDE, Defendant and Appellant.

H044832 (Santa Clara County Super. Ct. No. C1477207)

Defendant Jose Marcoscruz Mende appeals from the judgment entered after his probation was revoked for probation violations. Mende’s underlying convictions were the result of a negotiated disposition in which Mende pleaded no contest to felony assault with great bodily injury and to a misdemeanor hate crime charge.

Mende’s appointed appellate counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Our independent examination of the record pursuant to Wende revealed no arguable errors that would result in a disposition more favorable to Mende. However, we have found an error resulting in an unauthorized sentence that must be corrected—namely that after revoking and terminating probation, the trial court failed to impose a sentence on the misdemeanor count. We asked both parties to file supplemental letter briefs addressing the issue.

Factual and Procedural Background

1. Underlying Conviction and Negotiated Plea Agreement, August 2014[1]

Mende was in the area of a San Jose homeless shelter on February 21, 2014, with codefendant Manuel Mendez (codefendant) and German G.[2] After hanging out and drinking liquor, Mende and codefendant separated from German, who went to check on the beds at the shelter. When German returned, Mende and codefendant were seated in a truck nearby and codefendant was asleep. German shook codefendant lightly on the shoulder to tell him the bed lottery was starting.

Codefendant awoke angry. He called German a “fag” and pushed him to the ground outside the truck. German’s heavy backpack prevented him from getting up. Mende got out of the truck, saying loudly “ ‘Kill him, hit him.” Codefendant kicked German in the stomach and face, breaking his glasses, and choked him by stepping on his neck. Mende told codefendant to “kill [German] because [he] [is] a fag.” Then Mende told codefendant they should go because someone might call the police. German passed out and woke in the hospital. He had pain and difficulty breathing. A witness in a nearby parking lot corroborated German’s account of the assault.

German and codefendant had previously had a dating relationship which German kept secret “for [codefendant’s] benefit . . . .” German had not known Mende for long. German believed that both codefendant and Mende knew that he was homosexual.

The Santa Clara County District Attorney filed a first amended information on June 20, 2014, charging Mende and codefendant with assault by means of force likely to create great bodily injury, a felony (Pen. Code, § 245, subd. (a)(4); count 1) and commission of a hate crime by use of force and threat of force, a misdemeanor (id., § 422.6; count 3). The information alleged a hate crime enhancement to count 1 (id., § 422.75, subd. (b)), and as to Mende only alleged a strike prior for robbery (id., §§ 667, subds. (b)-(i), 1170.12).

On June 23, 2014, Mende pleaded no contest to the felony assault and misdemeanor hate crime charges (counts 1 & 3). The court dismissed the great bodily injury enhancement and granted the defense’s Romero[3] request to strike Mende’s 20‑year-old prior strike conviction for robbery. The trial court stated that Mende would be placed on probation with a condition of one year in county jail. At several points the court stated that the “misdemeanor, which is count three, will run concurrent.”

At the sentencing hearing on August 1, 2014, the trial court suspended imposition of sentence and granted formal probation for a period of three years, on condition that Mende serve one year in county jail. The court awarded 277 days of credits for time served, consisting of 159 actual days plus 158 days under Penal Code section 4019. The court also imposed conditions of probation and specified fines and fees. Among the probation conditions, Mende was ordered to enroll in and complete an anger management course. Mende spoke out that he never hurt or pushed anyone, but agreed that he wanted to proceed with the plea and terms of probation.

2. Probation Revoked March 2015, Reinstated and Extended October 2016

On March 19, 2015, Mende was arraigned in absentia on a violation of probation. The petition for modification of the terms of probation stated in part that Mende had failed to report to the Probation Department upon his release from jail, had failed to report for two scheduled office visits, and had failed to provide proof of enrollment in or completion of an anger management program. The trial court revoked probation and issued a bench warrant.

On October 6, 2016, Mende was arraigned on a probation violation after his arrest in Los Angeles County on September 22, 2016, for a misdemeanor violation of Vehicle Code section 21200.5, riding a bicycle under the influence of alcohol or drugs. Mende admitted the violation. The trial court reinstated probation and extended it for one year, through August 1, 2018. The court ordered Mende to serve seven months in county jail. He was released on January 11, 2017.

3. Probation Revoked and Sentence Imposed, June 2017

Mende was arrested again on April 10, 2017, in San Jose, for a misdemeanor violation of Penal Code section 148.9, providing false identification to a peace officer. The arrest report shows that Mende was stopped on a bicycle for Vehicle Code violations; he gave two false names to the officer before he was positively identified. Mende admitted the violation at an arraignment hearing on April 18, 2017, and the court revoked probation and remanded him to custody. On May 11, 2017, Mende pleaded no contest to the false identification misdemeanor offense and was ordered to serve one day in county jail.

On June 26, 2017, the court held a hearing on the probation violation report. The report summarized Mende’s convictions based on the June 23, 2014 plea agreement, the subsequent probation violations and court orders, and Mende’s statements to probation about the circumstances of his current probation violation.[4] Mende in part attributed his current violation to his homeless status, because he had difficulty keeping appointments and staying in communication and could not pay for the required anger management program. Before his arrest, Mende had been working as a dishwasher in a restaurant. He asked the court to give him “ ‘another chance’ ” to “ ‘do the right thing.’ ”

Probation officer Leslie Anaya testified about Mende’s difficulty making his probation appointments. She did not know whether probationers could enroll in the anger management course without paying. She had not had any conversations with Mende about efforts to obtain employment or vocational training or education.

Defense counsel argued for the court to allow Mende to remain on probation and pointed to several instances in which the probation department had discounted Mende’s efforts to keep appointments or had not extended aid to help him meet certain conditions. The prosecution responded that Mende’s pattern of missed appointments and consistent lack of performance on probation signified that he was not able to comport with probation and should be sentenced.

The trial court concluded based on “overwhelming evidence” that Mende was in violation of the terms and conditions of his grant of probation. It found “particularly significant” that Mende had an “extended period of absconding, which gave rise to the first violation of probation” and his absence from supervision until his arrest in Los Angeles County over a year later. This signified “a very serious pattern of failure; not just accidental failure, but willful failure and refusal to comply with conditions of probation in this case.”

The court denied probation and sentenced Mende to the midterm of three years in state prison for the felony assault conviction under Penal Code section 245, subdivision (a)(4) (count 1). It awarded 368 days of presentence credits. The court then stated, “For the misdemeanor offense in Count 3, I order that probation remain revoked. No further penalty will be imposed.” It imposed the probation revocation restitution fine that was previously suspended, imposed and suspended a fine in the same amount under Penal Code section 1202.45, and advised Mende that he will be subject to a three-year period of parole or PRCS (post-release community supervision) following his release from custody.

Mende timely filed a notice of appeal from the judgment.

DISCUSSION

We appointed counsel to represent Mende on appeal. Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues pursuant to Wende, supra, 25 Cal.3d 436. Mende was advised by counsel of his right to submit written argument on his own behalf within 30 days of the date of filing of the opening brief. That time has elapsed, and we have received no communication from him.

We have conducted an independent review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 and have found no arguable errors that would result in a disposition more favorable to Mende. However, we asked the parties to file supplemental letter briefs addressing whether the trial court’s sentence of June 26, 2017, was unauthorized because it consisted solely of a sentence on the assault conviction (count 1) and “[n]o further penalty” for the misdemeanor conviction (count 3). If it was unauthorized, we asked whether the matter should be remanded to the trial court for resentencing.

The parties propose several alternatives to finding that the trial court’s imposition of sentence on June 26, 2017, was unauthorized and the matter subject to remand. We share the parties’ preference to economize resources and avoid burdening the trial court and parties with additional proceedings. But for the reasons stated herein, we conclude that the sentence was unauthorized and is properly remedied by remand for the trial court to exercise its sentencing discretion.

1. The Trial Court Must Impose Sentence on All Counts

At issue is the trial court’s imposition of sentence after having revoked Mende’s probation a second time following his arrest for giving false identification to a police officer. The court held a hearing on the probation violation and found a “serious pattern of . . . willful failure and refusal to comply with conditions of probation in this case.” For that reason, the court stated, “I’m going to deny probation. [¶] . . . I am going to sentence the Defendant pursuant to 1170.1 of the Penal Code.” For the felony assault offense in count 1, the court imposed the midterm of three years in state prison. For the misdemeanor hate crime offense, the court neither imposed a fine or jail sentence. Instead, it stated “For the misdemeanor offense in Count 3, I order that probation remain revoked. No further penalty will be imposed.”

We find that having decided to “deny probation” and sentence Mende on the felony count, the trial court lacked authority to order that probation remain revoked with “[n]o further penalty” on the misdemeanor count. A trial court has defined sentencing options upon finding that the defendant has violated probation. These are to modify, revoke, or terminate the probation. (Pen. Code, § 1203.2, subds. (a), (b)(1); People v. Bolian (2014) 231 Cal.App.4th 1415, 1420 (Bolian).) When, as here, the court revokes a defendant’s probation, it can either place the defendant on probation again, on the same or modified conditions, or terminate probation and sentence the defendant to state prison. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, citing Pen. Code, § 1203.2, subds. (b), (c); accord Bolian, supra, at p. 1420.)

Here, after considering the report of the probation officer, the trial court elected to deny probation and impose sentence—in other words, the court chose to terminate probation. (Pen. Code, § 1203.2, subd. (b)(1).) We are aware of no authority for the court to simultaneously terminate probation and sentence the defendant to state prison on one count while ordering probation to “remain revoked” indefinitely on another count. To the contrary, when a trial court “has suspended imposition of sentence and later revokes the defendant’s probation, then the court has undisputed authority to choose from all the initially available sentencing options. ([Pen. Code,] § 1203.2, subd. (c).)” (People v. Howard (1997) 16 Cal.4th 1081, 1084 (Howard).) It may, upon revocation and termination of probation when sentence has been suspended, “pronounce judgment for any time within the longest period for which the person might have been sentenced.” (Pen. Code, § 1203.2, subd. (c); Howard, supra, at p. 1087.)

The discretion to choose among the “initially available sentencing options” (Howard, supra, 16 Cal.4th at p. 1084) does not mean that the trial court can forgo imposing sentence entirely. It is the trial court’s duty “to pass sentence on the defendant and impose the punishment prescribed.” (In re Sandel (1966) 64 Cal.2d 412, 415, citing Pen. Code, § 12.) That is, the court must pronounce judgment for all counts on which a conviction was validly obtained. “There is no authority for a court to refrain from imposing sentence on all counts, except where probation is granted.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1466 (Alford); accord People v. Duff (2010) 50 Cal.4th 787, 796 [“ ‘ “the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion” ’ ”].)

The misdemeanor offense in count 3 was for a violation of Penal Code section 422.6. That section prescribes as punishment imprisonment in a county jail not to exceed one year, or a fine not to exceed $5,000, or both, as well as mandatory community service “not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than his or her hours of employment or school attendance.” (Pen. Code, § 422.6, subd. (c).) The imposition of “no further penalty” for Mende’s conviction for count 3 was an unauthorized sentence because it was not among the prescribed punishments.

2. Limited Remand Is Proper to Correct the Unauthorized Sentence

Since the trial court imposed an unauthorized sentence, we may remand the matter for a new sentencing hearing or exercise our authority to modify the judgment (Pen. Code, § 1260; see People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045 [“any error in failing to impose sentence . . . would have been subject to judicial correction when it ultimately came to the attention of the trial court or [appellate] court”].)

In a similar situation, the appellate court in Alford decided to exercise its authority to modify the judgment after finding that remanding the matter for resentencing “would mean pulling [the] defendant out of his prison programming and busing him to Woodland for a new sentencing hearing that will not change his actual prison time.” (Alford, supra, 180 Cal.App.4th at p. 1473.) The court concluded the “futility and expense of such a course militates against it.” (Ibid.) The appellate court thereafter modified the judgment to reflect a midterm sentence for the count the court failed to impose a sentence on, finding it was “undoubtedly” the sentence the trial court would have imposed. (Ibid.)

Mende urges this court to adopt a similar remedy here, pointing to the trial court’s early comments that it intended to run count 3 concurrent to count 1 and arguing that the misdemeanor sentence should be stayed pursuant to Penal Code section 654. We agree that the trial court’s preference for leniency on count 3 is apparent from the record, given its statement at the revocation hearing that it would impose no further penalty for that count. But we decline to substitute our judgment for that of the trial court in deciding and make discretionary sentencing choices (People v. Lawley (2002) 27 Cal.4th 102, 172), particularly given the range of sentence options under Penal Code section 422.6, including a community service requirement. Accordingly, we believe remand is necessary so the trial court may exercise its discretion in sentencing Mende for count 3.

DISPOSITION

The judgment is reversed. On remand, the trial court is directed to impose a sentence for Mende’s conviction of committing a hate crime by use of force and threat of force, a misdemeanor (Pen. Code, § 422.6; count 3).