Filed 9/27/18 P. v. Vidor CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW JAMES VIDOR, Defendant and Appellant.

A152527 (Sonoma County Super. Ct. No. SCR-668037-1)

INTRODUCTION

In this appeal, counsel for appellant has filed a declaration stating he has reviewed the record in this case and decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. He has written appellant and advised him of this conclusion. Counsel told appellant he may file a supplemental brief with this court raising any issues Vidor believes need to be addressed. Vidor has filed a supplemental brief in the case, addressing his remorse regarding his conduct and the desire to receive another opportunity to demonstrate his responsibility. We have reviewed the record and conclude the judgment should be affirmed. This is a timely appeal.

STATEMENT OF THE CASE

The Sonoma County District Attorney filed a felony complaint in this case on July 7, 2015. Appellant was charged with unlawful taking of a motor vehicle in the immediate possession of another, a violation of Penal Code[1] section 215, subdivision (a) (count 1); fleeing a pursuing police vehicle while driving recklessly, a violation of Vehicle Code section 2800.2 (count 2); and elder abuse, a violation of section 368, subdivision (b)(1) (count 3). In the complaint, the district attorney alleged that count 1 was a serious and violent felony pursuant to section 667.9, subdivision (a), based on the fact the victim was elderly, and that appellant was presumptively ineligible for probation pursuant to section 1203.09, subdivision (f) because the victim was over the age of 60.

On July 14, 2015, the trial court expressed a doubt whether appellant was mentally competent and appointed Donald Apostle, M.D., to make a formal assessment on the issue pursuant to section 1368. The doctor found appellant not competent, concluding he suffered from polysubstance abuse, was becoming delusional, and was unable to address his primary mental health issues until he was no longer using illegal drugs. Criminal proceedings were suspended on August 5, 2015. Eventually, the trial court committed appellant to Napa State Hospital for the maximum term of three years on August 26, 2015. The trial court further stated that if it was sentencing appellant to state prison, he would receive the maximum sentence permitted by law, three years.

In September 2015, defense counsel indicated to the court that appellant had been restored to competency. The trial court appointed Dr. Apostle on September 15, 2015. After this, the court received a supplemental report, and on October 7, 2015, the court again confirmed its prior commitment order. The section 1370 report confirmed appellant was incompetent.

On November 25, 2015, the Director of the Metropolitan State Hospital transmitted a certification of mental competency pursuant to section 1382. Criminal proceedings were reinstated on December 11, 2015, after the trial court decided appellant was now competent.

In an effort to resolve the case, the court suggested appellant admit his culpability to a selection of the charges. The case was referred to the Forensic Assertive Community Treatment court (FACT court). The district attorney believed this attempt to resolve the case was not appropriate. The FACT court program places individuals with mental health problems into mental health programs on probation rather than jail or on the street. The trial court indicated if appellant was accepted by the FACT court, he could enter a plea to the court. The prosecution filed a formal objection to this approach on January 6, 2016. Since the district attorney objected, the referral to the FACT court was ended. Defense counsel objected to the prosecutor’s position and the subsequent vacation of review of the case by the FACT court. The trial court deferred entry of appellant’s plea.

On January 20, 2016, appellant entered a plea of not guilty to the complaint. At this time, he had been accepted to the Jericho Project Drug and Alcohol Treatment Program (Jericho Project). On February 19, 2016, after the public defender was no longer representing appellant, new counsel was selected named Richard Scott. In an effort to resolve the case, the prosecution offered appellant a plea agreement of five years. Appellant instead opted for an open plea to all the counts in the complaint, along with the enhancements; the maximum sentence in this situation could be 11 years eight months. The defense submitted a statement in mitigation seeking probation. The prosecution sought the maximum penalty in its sentencing memo.

The sentencing hearing took place on June 14, 2016. The court believed that the Jericho Project was not a proper solution to the matter. The court noted appellant had not submitted any personal statement on the case or shown remorse. The sentencing was continued to July 19, 2016, to obtain additional information on a proper sentence. The court learned the Jericho Project was inappropriate for appellant since it specifically treats chemically dependent offenders and not persons like appellant who have a dual diagnosis. It had no mental health component.

The new sentencing hearing was held on July 19, 2016. At the hearing, the court recited the several materials it had reviewed in the case. This included several letters in support of appellant, as well as one from appellant, contained in the record. The court imposed a sentence of 10 years eight months, which was the recommendation of the adult probation department. The court then suspended the execution of that sentence and placed appellant on formal probation for a period of four years. He was required to serve one year in the county jail. Appellant received credits of 732 days in custody; the credits included 349 days’ actual credit and 348 conduct credits with 35 days of credit for his time in the hospital. The court allowed appellant to enter the Jericho Project; however, while he was given the option, it was already concluded he was not a candidate for the Jericho Project because he had a dual diagnosis. Appellant was further instructed to report any release from the Jericho Project or if he was sent to another program.

Naturally, on September 2, 2016, the probation department petitioned the court for summary revocation of appellant’s probation, because he had been released from the Jericho Project on August 28, 2016. His discharge was based on his improper attitude and conduct, as well as his failure to properly respond to treatment in a positive fashion. He also did not advise probation of his release from the Jericho Project after being told by the court to do so. The trial court revoked probation on September 2, 2016.

A hearing was held in Sonoma County Superior Court on April 25, 2017. The court was told appellant was currently in custody in San Francisco and had been for the past 90 days. He was not yet in the custody of the Sonoma County Sheriff. The Sonoma County Superior Court appointed the public defender to represent appellant on May 30, 2017. However, on June 21, 2017, attorney Geoffrey Dunham replaced the public defender as appellant’s counsel.

A revocation hearing was held in Sonoma County on July 17, 2017. There, appellant admitted to a violation of probation. The trial court indicated concern regarding the excessive role appellant’s parents played in his rehabilitation efforts, which the court believed was impeding appellant’s progress. On September 19, 2017, his Sonoma counsel filed with the court letters from the public defender’s office in San Francisco, discussing the fact that the Jericho Project was not appropriate for dual diagnosis individuals. The San Francisco Public Defender requested appellant be placed in a dual diagnosis program in San Francisco, currently in use by appellant for his San Francisco offense. Instead, the Sonoma court terminated probation unsuccessfully and imposed the previously suspended sentence of 10 years eight months. The court applied previous credits appellant had received in his ongoing incarcerations after his arrest in the Sonoma crimes. On this date of sentencing after revocation, appellant obtained custody credits of 602 days. This consisted of 493 actual days’ credit and 35 hospital days’ credit but only 74 days of conduct credits.

Appellate counsel includes in his Wende brief a discussion on the credits appellant is entitled to receive. Our independent review of the trial record raises some confusion regarding the calculations made by the court on the recommendation of the probation department. It is not clear what triggered the reduction in conduct credits or how the actual credits were determined between the original sentence in July 2016, and the sentence of September 2017. The record is not clear on the issue of credits and we are not able to understand the divergent numbers here.

STATEMENT OF FACTS

The recitation of facts is derived from the probation report in this case. The police had a report of a carjacking of a Volvo at a supermarket on July 1, 2015. The victim of the theft was an elderly male who sustained several abrasions. He told police he was confronted by a single male while the victim was putting his purchases in the car. He said appellant pushed the elderly man out of the way and jumped into the car on the driver’s side. The victim attempted to enter the car as it began to move but appellant pushed him away as the car was moving at 15 to 20 miles per hour. An officer noticed appellant driving the Volvo after the car was reported stolen. It appears once appellant noticed the police he accelerated the car. The officer turned on his siren and lights but the appellant continued to speed up. He was travelling across the Petaluma Bridge at speeds in excess of 80 miles per hour. As he exited the bridge he passed several cars on the right shoulder and proceeded without stopping through a stop sign. Appellant then got back on the freeway and reached a speed of up to 110 miles per hour in an effort to evade the authorities now in pursuit. The officer had to stop his chase because appellant evaded the police.

That midnight, an officer of the San Francisco Police Department noticed a Volvo like the one carjacked driving without a rear license plate and making an illegal right turn. The officer stopped the car for a traffic stop. When asked by the officer, appellant admitted he had no driver’s license in his possession and was unable to tell the police who owned the car. When the officer checked the plate for ownership, he learned the car had been stolen in Petaluma; appellant was arrested. After arresting appellant for the possession of a stolen vehicle, the officer ran a warrant check and learned appellant also had a no-bail warrant from San Francisco. When interviewed by the San Francisco police, appellant admitted he had been in Petaluma on July 1, but did not know anything about the theft of the car he was driving. The officer incorrectly told appellant the owner of the Volvo had been hospitalized as a result of the theft of his car. Appellant told the officer he had been walking in the parking lot of a supermarket when he saw a man loading groceries into the car. The car was similar to a Volvo appellant had previously owned. The motor of the car was running and appellant confronted the man over what was happening to the Volvo. Presumably, appellant wanted to convey the impression he believed he owned the car in question. Appellant decided to drive the car away to help people. The man tried to stop appellant, but appellant prevented the man from doing so. Eventually, appellant got on the freeway in Sonoma and drove very fast to avoid being pulled over. When he reached San Francisco, he removed the license plate from the rear of the automobile.

DISCUSSION

We have reviewed the record in this case. While the case has a detailed procedural history created in part because of the competency issues, the bottom line is there are no appellate issues identified in the record. The supplemental brief presented by appellant himself states he is now remorseful and would like another chance to show he can be a productive member of society. The fact remains he was given a suspended sentence by the Sonoma County Superior Court, which resulted in him essentially absconding from his responsibilities. He did not advise probation he was excluded from the Jericho Project, that he had left the jurisdiction without notice and was in custody in San Francisco, presumably on a new matter. The court then revoked probation and imposed the suspended sentence. This was an appropriate consequence based on the facts of the case and criminal history.

We do have some question regarding the calculation of credits. Because of the minimal record on this issue, we believe the case should be remanded to the Sonoma Superior Court to properly assess what appellant is entitled to in the credit calculation. The trial court is in the best position to perform this calculation.[2]

DISPOSITION

Therefore, we remand to the trial court to properly consider the custody credits appellant is entitled to in the case. In all other respects the judgment is affirmed.