People v. Bolian

Filed 12/2/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B252794

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. MA052593)

v.

BRUCE LEONARD BOLIAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,

Daviann L. Mitchell, Judge. Reversed.

Gail Ganaja, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney

General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for

Plaintiff and Respondent.

************

Bruce Leonard Bolian appeals from the trial court’s judgment revoking his

probation and executing a previously imposed sentence of five years in state prison. We

reverse and remand for the limited purpose of determining whether to reinstate or

terminate probation, as it appears the court may have misunderstood the scope of its

discretion.

FACTS AND PROCEDURE

In December 2011, appellant was charged in an amended information with one

count of possession of a deadly weapon (a billy club) in violation of Penal Code former

section 12020, subdivision (a)(1).1 The amended information also alleged appellant had

suffered three prior convictions within the meaning of the “Three Strikes” law (§§ 667,

subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served prison terms for eight prior

convictions within the meaning of section 667.5, subdivision (b). Appellant pled guilty

and admitted two prior convictions within the meaning of section 667.5, subdivision (b).

In February 2012, the court sentenced appellant to five years in state prison, consisting of

three years for the substantive count and two years for the prior conviction allegations.

The court then suspended execution of the sentence and placed appellant on formal

probation for five years. The conditions of his formal probation required that he (1)

perform 60 days of Caltrans (California Department of Transportation) community

service, (2) not own, use, possess, buy, or sell any controlled substances except with valid

prescription, and (3) submit to periodic controlled substance testing when requested.

1 Further undesignated statutory references are to the Penal Code. “[F]ormer

section 12020 (Stats. 2008, ch. 699, § 18, p.4834), prohibiting possession of a wide

variety of weapons, was repealed and recodified in a nonsubstantive reorganization which

divided former section 12020 into new numbered sections. (Stats. 2010, ch. 711, § 4,

operative Jan. 1, 2012; see §§ 16000 [Deadly Weapons Recodification Act of 2010],

16005 [‘Nothing in the Deadly Weapons Recodification Act of 2010 is intended to

substantively change the law relating to deadly weapons.’].)” (People v. Brown (2014)

227 Cal.App.4th 451, 455, fn. 1.)

2

According to the report of Deputy Probation Officer (DPO) Douglas Morales,

appellant tested positive for marijuana in December 2012, January 2013, March 2013,

and May 2013. The DPO’s report recommended the court find appellant had violated

probation but modify probation by ordering appellant to complete an outpatient drug

counseling program. The court set a probation violation hearing for August 2, 2013, for

which appellant did not appear. The court preliminarily revoked appellant’s probation

based on the report that he had violated the terms of his probation and his failure to

appear.

The matter was continued for a contested violation hearing, at which DPO

Morales testified. The DPO had previously discussed with appellant that he was not in

compliance with the conditions of his probation because he had tested positive for

marijuana, and he also had not performed his 60 days of Caltrans community service.

Appellant said he could not perform his Caltrans service because he was having back

problems and was on heavy medication. As to the marijuana use, appellant submitted a

recommendation for the use of medical marijuana from his doctor. The recommendation

was dated March 2, 2013, and was valid for one year. As to appellant’s nonappearance

on August 2, 2013, before that date, appellant called DPO Morales to say he could not

appear for court because of his physical condition. The DPO’s revised recommendation

was to find appellant violated probation but modify his probation so that appellant serve

“a suitable amount of time in custody” and attend an outpatient drug education program.

The court found appellant violated his probation because he tested positive for

marijuana, he failed to appear on August 2, 2013, without excuse, and he failed to

complete his community service without excuse after being on probation for nearly a year

and a half. The court revoked his probation and ordered execution of the previously

suspended sentence of five years in state prison.

DISCUSSION

Appellant contends the court misunderstood its legal authority to reinstate and/or

modify his probation rather than revoke and terminate it, and we must therefore reverse

for the court to properly exercise its discretion. We agree.

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1. Pertinent Background

Before DPO Morales testified, defense counsel asked the court to adopt the

recommendation of the DPO “for some jail time and drug treatment.” The court

responded by asking whether the DPO knew at the time of his recommendation that

appellant had an executed but suspended sentence. The court pointed out the DPO’s

September 2013 report said “imposition of sentence suspended” (capitalization omitted),

which was not the same thing as execution of sentence suspended. The DPO’s earlier

report from June 2013 stated something slightly different in regards to appellant’s

sentence; it said, “state prison – suspended” (capitalization omitted).

After DPO Morales testified and the parties were arguing their positions, defense

counsel again asked the court to consider the DPO’s recommendation:

“[Defense Counsel]: . . . I would just ask the court to consider the

fact that [appellant] be found in violation of probation but, however, be

given some jail time to allow him to understand that he has to comply with

strictly --

“The Court: The difficulty is that it will be illegal for me to do, and

the probation officer may not be aware of that. I would have to make a de

minimis finding to do that. This isn’t de minimis. And I can’t. It would be

illegal and improper. That’s what an execution of sentence suspended is so

a judge doesn’t come in and undercut another judge. That’s the problem.

He may not be aware of that. I don’t know.

“[Defense Counsel]: Well, the probation department?

“The Court: Yes. Not to mention the fact that on the form it says

the imposition of sentence is suspended. It’s not. It’s execution of

sentence is suspended. So I don’t know if this D.P.O. is familiar with what

that means and the differences, and if it would have affected his

recommendation.

“[Defense Counsel]: Well, I don’t know if that would be illegal,

Your Honor.

“The Court: It is. That’s why they do an ESS.”

The court went on to revoke appellant’s probation and execute the sentence previously

imposed, as discussed above.

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2. Analysis

A probation violation does not automatically call for revocation of probation and

imprisonment. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 795.) A court may

modify, revoke, or terminate the defendant’s probation upon finding the defendant has

violated probation. (§ 1203.2, subds. (a), (b)(1).) The power to modify probation

necessarily includes the power to reinstate probation. (People v. Medina (2001) 89

Cal.App.4th 318, 321; Hawthorne, supra, 226 Cal.App.3d at p. 795.) Thus, upon finding

a violation of probation and revoking probation, the court has several sentencing options.

(Medina, supra, 89 Cal.App.4th at p. 322.) It may reinstate probation on the same terms,

reinstate probation with modified terms, or terminate probation and sentence the

defendant to state prison. (Ibid.; see also Couzens et al., Sentencing California Crimes

(The Rutter Group 2012) ¶ 23:1 [“After a defendant violates felony probation, the court

may either reinstate the defendant on probation with additional sanctions and/or

modification of the conditions of probation, or send the defendant to state prison.”].)

If the court decides to reinstate probation, it may order additional jail time as a

sanction. (Couzens et al., supra, ¶ 23:2.) If, instead, the court decides to terminate

probation and send the defendant to state prison, the sentence the court may impose

depends on how the court disposed of the case when it first placed the defendant on

probation. If the court originally suspended imposition of sentence, the court may, upon

revocation and termination of probation, “pronounce judgment for any time within the

longest period for which the person might have been sentenced.” (§ 1203.2, subd. (c).)

But if the court originally imposed a sentence and suspended execution of it, upon

revocation and termination of probation, the court must order that imposed sentence into

effect. (Ibid.; People v. Howard (1997) 16 Cal.4th 1081, 1088, 1095.) The court

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ordinarily has no authority to impose a lesser sentence in such a case.2 (Howard, supra,

at p. 1095.)

The decision whether to reinstate probation or terminate probation (and thus send

the defendant to prison) rests within the broad discretion of the trial court. (People v.

Medina, supra, 89 Cal.App.4th at p. 323; People v. Covington (2000) 82 Cal.App.4th

1263, 1267.) “It is axiomatic that when an issue entrusted to the trial court’s discretion is

properly presented to the court for decision, the court must exercise its discretion: In

such a case a statement or other evidence that the court believes it has no discretion, but

must rule in a certain way, indicates an error so fundamental as to be said to amount to a

refusal to exercise jurisdiction.” (People v. Angus (1980) 114 Cal.App.3d 973, 987.)

“Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed

discretion” of the sentencing court,’ and a court that is unaware of its discretionary

authority cannot exercise its informed discretion.” (People v. Brown (2007) 147

Cal.App.4th 1213, 1228, quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)

Therefore, when the record indicates the court misunderstood or was unaware of

the scope of its discretionary powers, we should remand to allow the court to properly

exercise its discretion. (People v. Brown, supra, 147 Cal.App.4th at p. 1228; People v.

Medina, supra, 89 Cal.App.4th at p. 323.) We need not remand, however, when the

record indicates the court was aware of its discretion or the record is merely silent on

2 We say “ordinarily” because, in exceptional circumstances, “the court may wish to

avail itself of the procedure authorized by section 1170 [, subdivision] (d) to recall a state

prison sentence and impose a lesser term,” a “somewhat cumbersome process.”

(Couzens et al., Sentencing California Crimes, supra, ¶ 23:5.) The defendant must

actually be committed to the Department of Corrections and Rehabilitation first. (§ 1170,

subd. (d).) The court may then recall the sentence and commitment within 120 days and

resentence the defendant to a lesser term. (Ibid.) At the precommitment stage, however,

the court has no authority to impose a lesser sentence. (People v. Howard, supra, 16

Cal.4th at pp. 1088, 1095.)

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whether the court misunderstood its sentencing discretion. (People v. Brown, supra, 147

Cal.App.4th at pp. 1228-1229.)

Here, the record discloses the court may have believed it lacked discretion to

reinstate appellant’s probation on modified terms. DPO Morales recommended such a

disposition. The DPO recommended modifications so that appellant serve some jail time

(which would have been permissible as a sanction) and participate in a drug counseling

program. When defense counsel asked the court to consider using the DPO’s

recommendation, the court said it would be “illegal and improper” to do so. Taken as a

whole, the court’s comments implied (1) it was illegal to reinstate and modify probation

for violations that were more than de minimis, and/or (2) it was illegal to reinstate and

modify probation when a sentence had been imposed but execution suspended. Neither

was the case. Upon finding a probation violation, the court had the broad discretion to

choose between reinstatement and termination. Moreover, whether the court had

previously suspended imposition of a sentence or suspended execution of a sentence, the

court still had the authority to choose between reinstatement and termination. (See

People v. Medina, supra, 89 Cal.App.4th at p. 323 [“[W]hen a judge suspends execution

of a prison term, the message being conveyed is that the defendant is on the verge of a

particular prison commitment. Nonetheless, upon violation and revocation of probation

under such circumstances, the sentencing court retains discretion to reinstate

probation.”].) The court seemed particularly concerned with the DPO’s understanding of

the difference between suspending imposition and suspending execution of sentence. But

the difference did not matter for purposes of the DPO’s recommendation that probation

be reinstated and modified. Only once the court rejects reinstatement and chooses

termination will the difference between suspended imposition and suspended execution

come into play.

In sum, we think a fair reading of the court’s comments demonstrates it was not

aware of its discretionary power to reinstate and modify probation, even if it found

violations and revocation appropriate. Accordingly, we shall remand to give the court the

opportunity to exercise its discretion. Nothing in this opinion should be construed as an

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indication of this court’s position on reinstatement versus termination of probation. We

do not intend to express an opinion on the choice between the two.

DISPOSITION

The judgment revoking and terminating appellant’s probation is reversed.

Appellant’s sentence is vacated and the matter remanded to the trial court with directions

to exercise its discretion whether to reinstate probation (either on the same terms or on

modified terms) or terminate probation.

FLIER, J.

WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.

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