Filed 5/10/22 P. v. Pennewell CA1/4

(opinion on rehearing)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Aileka Pennewell appeals a judgment revoking her probation and imposing a four-year prison sentence. Initially, her court-appointed counsel filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and defendant submitted a letter brief arguing that (1) there was insufficient evidence to support the probation violation findings, (2) the prison term should be reversed because her felony conviction upon which it was based should have been reduced to a misdemeanor prior to the filing of the probation revocation petition, and (3) the court made unspecified errors in calculating her credits. After reviewing the briefing and the record, we concluded that no issue warranted further briefing, but that potential errors in the calculation of custody credits required a limited remand.

After the original opinion was filed, defendant petitioned for rehearing on the ground that newly enacted Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, §§ 5-6) applies retroactively and creates a presumption favoring imposition of the lower term of imprisonment in this case. We solicited a response from the Attorney General. Having considered the additional briefs, we reiterate our original conclusion that the court did not err in revoking and refusing to reinstate defendant’s probation. We agree that Assembly Bill No. 124 necessitates remand for a new sentencing hearing. Accordingly, we will remand for that purpose, but otherwise affirm the judgment.[1]

Background

In August 2018, defendant pled no contest to felony child endangerment (Pen. Code,[2] § 273a, subd. (a)) and misdemeanor driving under the influence (DUI) with one prior DUI conviction (Veh. Code, § 23152, subd. (a)). Her negotiated plea included the stipulation that her felony conviction would be reduced to a misdemeanor in 18 months if she “is compliant with probation.” Imposition of sentence was suspended and defendant was placed on four years of formal probation with DUI terms and a 180-day jail sentence to be served in a residential treatment program.

In February 2019, defendant was found in violation of her probation. The court revoked her probation, ordered her to serve 120 days in jail, and reinstated her on probation.

In May 2021, defendant was again found to have violated her probation. She was sentenced to 56 days in jail to be served in a residential treatment program and her probation was again modified and reinstated.

On June 23, 2021, the Solano County Probation Department filed a probation revocation memorandum alleging that defendant failed to abstain from alcohol, failed to submit to drug testing, and failed to comply with the orders of her probation officer. On July 6, 2021, the court held a formal revocation hearing at which defendant’s probation officer testified that on June 14, 2021, defendant admitted that sometime in the prior two weeks she had consumed rubbing alcohol and been rushed to a hospital emergency room. After defendant’s admission, the probation officer instructed defendant to submit to testing but defendant was unable to produce a urine sample. The probation officer offered defendant a second chance to provide the sample and instructed her to remain in the lobby until she returned with water for defendant to drink. When she returned to the lobby 10 to 15 minutes later, defendant was gone. When defendant failed to return to the office on June 14, the probation officer called her the next day and left a voicemail telling her to report on June 16, followed by another voicemail on June 16 reminding her to report before 5:00 p.m. that day. Defendant did not report on June 16 and did not call the office until after business hours that day. The court found, based on the above testimony, that defendant had violated her probation.

On August 4, 2021, the court terminated probation and imposed a four-year prison sentence plus fines and fees. The court awarded defendant credit for time served of 188 custody and 188 conduct credits under section 4019, for a total of 376 presentence credits.

Defendant timely filed a notice of appeal.

Discussion

Substantial evidence supports the trial court’s finding that defendant violated the terms of her probation. The terms of defendant’s probation required, among other things, that she abstain from use of alcohol, submit to alcohol and drug testing as directed, and report to and comply with the orders of her probation officer. At the revocation hearing, defense counsel argued that drinking rubbing alcohol should not be considered a violation of the no-alcohol term absent evidence that rubbing alcohol was similar in impact to an alcoholic drink consumed for intoxication. Defendant reiterates this argument in her supplemental brief. We need not decide this issue as there is ample evidence that defendant failed to comply with her probation officer’s instructions to test on June 14 and report on June 16.

Defendant’s explanations for her failure to test on June 14 and report on June 16, asserted for the first time in her supplemental brief on appeal, rely on facts outside the record. These justifications could have and should have been presented under oath at the probation revocation hearing where the judge would have been able to evaluate her veracity.

Contrary to defendant’s argument, she was not entitled to reduction of her felony conviction to a misdemeanor prior to sentencing. Defendant contends that her conviction should have been reduced in March 2020 prior to “all subsequent damaging probation history.” Defendant, however, admitted to her probation officer that she had consumed alcohol in September 2018. In February 2019, she had her probation revoked based on her failure to enter a rehabilitation program, submit to testing and report to probation as directed. Finally, in September 2019, defendant was arrested for a suspected assault. Accordingly, as of March 2020, defendant was not in compliance with the terms of her probation as required by the stipulation in her plea agreement.[3] Given defendant’s prior unsuccessful attempts at probation, the trial court did not abuse its discretion in refusing to reinstate probation.

Defendant is entitled to resentencing under Assembly Bill No. 124 which, enacted after the sentencing hearing in this case, amended section 1170 to read in relevant part: “[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances [such] that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] “(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.” (§§ 1170, subds. (b)(6) & (b)(6)(A).) In People v. Banner (2022) 77 Cal.App.5th 226, the court held that Assembly Bill No. 124 applies retroactively to nonfinal cases on direct appeal.

The Attorney General acknowledges that there is evidence in the record suggesting that defendant might be a victim of domestic violence. At defendant’s sentencing hearing, defense counsel argued that defendant’s alcoholism was due in part to domestic violence inflicted by her estranged husband and that assertion was not refuted by the prosecutor. Insofar as the court found that the aggravating and mitigating factors were offsetting and thus supported imposition of the midterm, it is possible that the court would have imposed the low term under the recent statutory amendment if it found that defendant was a victim of domestic abuse and that her abuse was a factor in the commission of her crime. Accordingly, remand for resentencing is warranted in this case.

Disposition

The matter is remanded and the trial court is directed to resentence defendant consistent with section 1170, subdivision (b)(6) and to determine whether custody credits have now been calculated correctly. The judgment is otherwise affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.

[1] While this appeal was pending, defense counsel petitioned the trial court for correction of defendant’s custody credits and an amended abstract of judgment was filed. Defendant’s supplemental brief, filed after the amended abstract, suggests that she may not have received credit for all time served. This matter can be addressed at resentencing if necessary.

[2] All statutory references are to the Penal Code unless otherwise noted.

[3] Defendant misreads the stipulation when suggesting that completion or compliance with a “program” alone would warrant the reduction of the felony conviction.