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The People v. Stephen Christopher Hamblin

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)


December 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEPHEN CHRISTOPHER HAMBLIN, DEFENDANT AND APPELLANT.

(Super. Ct. No. F4514)

The opinion of the court was delivered by: Butz ,j.

P. v. Hamblin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Stephen Christopher Hamblin was charged with 31 counts of sexual conduct with two minors. As part of a plea bargain, he pleaded guilty to 27 counts, in exchange for the dismissal of four counts and a state prison sentence range. The trial court sentenced him to 16 years four months in state prison. Defendant timely appealed, and obtained a certificate of probable cause.

Defendant contends some counts, other than three as to which he waived the statute of limitations, were facially time-barred and must be reversed. The Attorney General partly concedes the point, contending that the cause must be remanded for a determination of which, if any, counts are factually time-barred, and contending that if any are factually time-barred, the remedy would be to allow defendant to withdraw his plea and reinstate the dismissed charges, not simply reverse the time-barred counts. We agree with the Attorney General. Defendant also attacks the sentence imposed and the procedures leading up to sentencing. Because defendant, on remand, might stand on his plea, we address those contentions, and reject them. We shall reverse and remand with directions.

PROCEDURAL BACKGROUND

On March 5, 2009, the People filed a 29-count complaint alleging sex crimes against two minor victims, identified as Jane Doe 1 and Jane Doe 2, dating back to 1998. At the preliminary hearing, defendant was held to answer, and the magistrate noted the evidence supported additional charges. On October 28, 2009, the People filed an amended information alleging 31 counts.

On that date, the parties entered into a plea bargain. The written plea form specifies 27 counts that defendant would admit, with minimum and maximum sentences for each count, and states the plea provides for "State Prison" for "Minimum 6 yrs maximum 20 yrs 4 mo at 50%." The box indicating probation and possible probation conditions is crossed out, and defendant initialed a box stating "I understand that I am not eligible for probation." Four counts (counts 1, 2, 20 and 21)*fn1 and all enhancements were to be dismissed. The factual basis for the plea was to be provided by the preliminary hearing transcript. The trial court accepted the plea bargain after ascertaining on the record that defendant fully understood it.

In part, the trial court stated there was no minimum requirement for a state prison sentence and discussed the sentencing range, but also stated, "in consideration of the district attorney's dismissal of the remaining charges against you, that minimum period of incarceration would be six years in state prison. Do you understand that? [¶] THE DEFENDANT: Yes."

Defense counsel explained that "some of these charges that were just added [are] technically barred by the statute of limitations, but because they contain the same [range] as other counts that could be added I didn't see any harm in putting them in there." Defendant then waived the statute of limitations as to counts 29, 30 and 31.

On November 24, 2009, the probation department filed aninitial report recommending probation, as well as a "Static-99" reoffense evaluation, which indicated defendant was at low risk of reoffense. On December 2, 2009, Dr. Gary Cavanaugh submitted an evaluation report also concluding defendant was at low risk of reoffense, stating "it would be important that [defendant] be prohibited from being alone with any minor female" if he were to be released. Taking this into consideration, along with victim impact statements, on December 7, 2009, the probation department submitted an amended probation report, recommending the maximum sentence contemplated by the plea bargain, 20 years four months, and sex offender registration.

The People's sentencing memorandum contended there was no need to address probation, because the plea called for a minimum prison term of six years. The People also contended that Dr. Cavanaugh's report was not prepared to determine defendant's suitability for probation (cf. Pen. Code, § 288.1),*fn2 but instead was prepared "at the request of the defense" to "assist the defense on sentencing." Attached to the memorandum was a declaration of prosecutor Dana L. Pfeil, regarding prosecutorial contacts with the probation department.

On December 8, 2009, defendant moved for a hearing regarding the prosecutorial contacts with the probation department, given the stark change in its recommendation. The prosecutor, Barbara Yook, tendered further declarations regarding contacts with the probation department.

At a hearing on December 14, 2009, defense counsel conceded probation had been precluded as part of the plea bargain, but nonetheless objected to the prosecutor's purported interference with the probation department's recommendation.

Defendant then moved for sanctions, a new probation report, and recusal of the district attorney's office.

The Attorney General and the district attorney opposed the recusal motion. The prosecutor submitted further declarations regarding contacts with the probation department, which we address later.

At a hearing on January 11, 2010, while defending the probation department's initial report, defense counsel again conceded the plea bargain precluded probation, stating "but for my stipulation that he would do six [years], [defendant] was eligible for probation. He is eligible for probation."

The trial court denied all of the defense motions, for reasons we explain later.

At sentencing, defense counsel again stated the plea bargain called for at least six years in prison, a figure he had proposed by figuring three years per victim.

The trial court stated that it had been "a little shocked" when it read the first probation report, in part because at the time of the plea bargain the judge had commented in chambers that it appeared defendant had been "grooming" the victims over a long period of time, but "all of those issues are irrelevant based on the stipulated sentence whereby [defendant] would, in fact, be sentenced to state prison in this case. So the Court does not and is not required to make a finding whether [defendant] is statutorily eligible for probation." The court then sentenced defendant to 16 years four months in state prison. Defendant was awarded 315 days of actual presentence credits and 156 days of presentence conduct credits. Because defendant was required to register as a sex offender, he was not entitled to the benefit of the more favorable conduct credit formula recently enacted. (§§ 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010] [one-for-one credit formula not applicable to sex registrants].)

Defendant timely filed this appeal, and received a certificate of probable cause.

DISCUSSION

I. Time-barred Counts

The California Supreme Court has held that "when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 341 (Williams).) The parties agree that, despite defendant's failure to raise the issue in the trial court, the bulk of the charges in the information are facially time-barred and defendant may challenge them in this appeal. Defendant contends those charges must be reversed. The Attorney General proposes a remand to determine whether any facially time-barred charges were nonetheless factually timely, and that if any charges are factually time-barred, defendant should be given an opportunity to withdraw his plea, in which case the dismissed charges should be reinstated.

As we shall explain, we agree with the Attorney General that we must remand for a factual hearing because we cannot tell from the record whether some charges are or are not time-barred. We also agree with the Attorney General's second point: Simply striking the defective counts would deprive the People of the benefit of the bargain. Instead, the appropriate remedy if some charges are found to be factually time-barred is to permit defendant to withdraw his plea and return the parties to the status quo ante by reinstating the dismissed charges.

Defendant pleaded guilty to 27 counts as follows:

* Sixteen counts of lewd act with a child aged 14 or 15 by a person at least 10 years older (§ 288, subd. (c)(1)--counts 3-11 & 22-28);

* Eight counts of penetration of a minor with a foreign object (§ 289, subd. (h)--counts 12-19);

* Two counts of oral copulation with a minor (§ 288a, subd. (b)(1)--counts 30 & 31);

* One count of unlawful sexual intercourse with a minor more than three years younger (§ 261.5, subd. (c)--count 29).

The parties agree the offenses defendant admitted have a three-year statute of limitations. (§ 801.)

On January 1, 2005, former section 801.1 became effective, providing a 10-year statute of limitations for some sex offenses. (Stats. 2004, ch. 368, § 1; see § 801.1, subd. (b).) The parties agree that although this extends the statute of limitations for offenses already committed, it does not revive offenses already time-barred as of January 1, 2005. We agree. (People v. Robinson (2010) 47 Cal.4th 1104, 1112; cf. In re White (2008) 163 Cal.App.4th 1576, 1583.)

The parties also agree that, except for counts 16 through 19 and 29 through 31, all of the counts to which defendant pleaded guilty are facially time-barred; that is, they were alleged to have been committed more than three years before January 1, 2005. We agree. All of the admitted counts, except counts 16 through 19 and 29 through 31, alleged conduct beginning no later than December 14, 2001, meaning the three-year statute of limitations ran as to most of the counts before the January 1, 2005 effective date of former section 801.1.

The parties also agree that although counts 29 through 31 were facially time-barred, defendant validly waived the statute of limitations as to those counts. Thus, the parties agree that 20 of the 27 counts to which defendant pleaded guilty are facially time-barred.

The parties do not agree on the remedy. As stated by the California Supreme Court: "If the court cannot determine from the available record whether the action is barred, it should hold a hearing or, if it is an appellate court, it should remand for a hearing." (Williams, supra, 21 Cal.4th at p. 341.)

The Attorney General states that some of the counts may be factually timely, and points to section 803, subdivision (f). Defendant disagrees.

Section 803, subdivision (f) provides in part:

"(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.

"(2) This subdivision applies only if all of the following occur:

"(A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.

"(B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual.

"(C) There is independent evidence that corroborates the victim's allegation. If the victim was 21 years of age or older at the time of the report, the independent evidence shall clearly and convincingly corroborate the victim's allegation."

This provision, with minor changes, took effect on January 1, 1994, and was enacted as section 803, subdivision (g)(1). (Stats. 1993, ch. 390, § 1, p. 2226; see People v. Vasquez (2004) 118 Cal.App.4th 501, 503-506 [this section extends unexpired statute of limitations, but cannot revive period to prosecute time-barred offenses].) It was in effect before any of the alleged crimes in this case.

Substantial sexual conduct is defined as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).) In this case, sexual intercourse, oral copulation and digital penetration, reflected by the probation report, constitute substantial sexual conduct within the meaning of section 803, subdivision (f)(2)(B).

According to the probation report's summary of sheriff's department reports, on December 27, 2007, Jane Doe 1, aged 22, reported that defendant molested her when she was between 13 and 17, and "on occasion" he put his finger in her vagina. On January 8, 2008, Jane Doe 2, aged 22, reported that defendant repeatedly engaged her in oral copulation and masturbation, and had intercourse with her once.

Defendant asserts that the record shows the contested counts are time-barred because the prosecution of this case was commenced more than one year after the victims reported to the sheriff defendant's acts of substantial sexual contact. The Attorney General contends the record is not clear on what, exactly, the victims told the police, and therefore the matter must be remanded. We agree with the Attorney General.

The parties disagree about when this prosecution commenced. Defendant states it commenced when he was held to answer on April 17, 2009. The Attorney General contends it commenced when the complaint was filed on March 5, 2009. Generally, for purposes of timeliness, a felony prosecution is commenced when an information or indictment is filed, when a defendant is arraigned on a felony complaint, or when an arrest warrant or bench warrant is issued. (§ 804.) Thus, the dates of the holding order and complaint are irrelevant. Under the general rule, defendant's arraignment on the felony complaint on March 9, 2009, commenced the prosecution. (§ 804, subd. (c).) However, if section 803, subdivision (f) applies, it contains its own definition of commencing a prosecution, namely, the filing of a criminal complaint. (See People v. Yovanov (1999) 69 Cal.App.4th 392, 400-402.)

In any event, the prosecution commenced more than one year after the victims made some report to the sheriff's department. But we cannot tell exactly what the victims told the sheriff's department, or when, because those issues were not litigated. The Attorney General concedes both victims made some reports to the sheriff's department of substantial sexual conduct more than one year before the prosecution commenced, but he correctly contends those reports may not have described all of the specific acts underlying particular counts, and therefore the sheriff's reports did not necessarily trigger the statute of limitations as to all counts.

Further uncertainty exists because the sheriff's reports are not in the record, and the parties rely on summaries of the reports made by the probation department. Defendant correctly states that facts in a probation report are presumed accurate if no objection to the report is lodged. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1262.) But the probation report was not written to address statute of limitations questions; therefore, it is not reasonable to assume it fully reflects all information relevant to those questions. Because of this uncertainty, a remand is required to determine what the victims told the sheriff's department, and when.

Defendant appears to contend that when a victim makes a report of any substantial sexual conduct, that triggers the statute of limitations as to all offenses committed against that victim. We do not agree. Each count is evaluated separately.

For example, in People v. Terry (2005) 127 Cal.App.4th 750, the People in part argued that certain counts that were filed more than one year after a police report, but less than one year after the preliminary hearing, were timely, even though those charges were added to an existing complaint, rather than forming the basis of a new complaint. The court held: "Assuming that the victim's preliminary hearing testimony . . . disclosed the offenses charged in counts four through nine for the first time and constituted a new 'report to a California law enforcement agency' and, thereby, opened a one-year window period for filing a complaint charging those offenses under [former] section 803[, subdivision] (g), the question is whether failure to file another felony complaint within the year rendered prosecution of those counts untimely. Common sense tells us it did not. [¶] Even though [former] section 803[, subdivision] (g) literally requires a complaint to be filed within a year after a qualifying report to a California law enforcement agency, it would be patently absurd to require the filing of another criminal complaint, which would result in a complete duplication of evidence, within a year of the victim's preliminary hearing testimony revealing transactionally related sex crimes." (Terry, at p. 773.) Because the record did not make certain whether the offenses described at the preliminary hearing had not previously been reported to law enforcement, a remand was required. (Id. at pp. 773-774.) So, too, a remand is required in this case.

Similarly, in People v. Superior Court (Maldonado) (2007) 157 Cal.App.4th 694, an early police report did not describe substantial sexual conduct. In part the court held: "We read section 803, subdivision (f) as providing that when a report of sexual abuse occurs that involves substantial sexual conduct, the period of limitations is one year from that report, so long as other requirements are met. The statute does not state that when there is a report of sexual conduct not involving substantial sexual conduct, the period of limitations begins to run as to unreported sexual abuse involving substantial sexual conduct. [¶] If there is no prosecution within the applicable period of limitations after a report of unlawful sexual abuse not involving substantial sexual conduct, such a prosecution will be barred. Such a bar would not under section 803, subdivision (f), however, apply to the prosecution of a sexual abuse crime involving substantial sexual conduct reported later. This later report would activate the one-year period of limitations. For statute of limitations purposes, the later report is separate from and different than the earlier report." (Maldonado, at p. 702, italics added.) Thus, although this case is not on point, it, too, shows that each count must be evaluated to determine when the underlying conduct was reported.

Defendant insists that on remand he cannot be sentenced to more than 16 years four months, lest his right to appeal be penalized. We disagree.

"Critical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made. Thus, we held in People v. Delles (1968) 69 Cal.2d 906, 910, that a judgment contrary to the terms of a plea bargain may not be imposed without affording the defendant an opportunity to withdraw his guilty plea. [Citations.] And we held in In re Sutherland (1972) 6 Cal.3d 666, 672, that when the defendant withdraws his guilty plea or otherwise succeeds in attacking it, counts dismissed pursuant to a plea bargain may be restored." (People v. Collins (1978) 21 Cal.3d 208, 214-215 (Collins).)

In Collins, the conduct Collins admitted was decriminalized by the Legislature. In such circumstances, the court limited his exposure on remand: "This is not a case in which the defendant has repudiated the bargain by attacking his guilty plea; he attacks only the judgment, and does so on the basis of external events--the repeal and reenactment of section 288a--that have rendered the judgment insupportable. This court has long recognized that the state has no interest in preserving erroneous judgments [citation] and that convictions should not rest on non-criminal conduct. Here external events and not defendant's repudiation undermined this plea bargaining agreement." (Collins, supra, 21 Cal.3d at p. 216, italics added, fn. omitted.)

In determining whether defendant's attack on his plea is based on events "external" to the plea bargain, we take guidance from the following discussion:

"A defendant who successfully challenges a guilty plea on appeal ordinarily has the choice on remand of standing on that plea and obtaining the benefits of the original bargain, or of withdrawing the plea and proceeding as though no bargain had ever been made. Where the defendant chooses the latter course the trial court is not precluded from imposing a harsher sentence than was called for by the plea bargain. [Citations.] The difficulty in Collins was that the defendant could not be given the choice of standing on the original plea because the underlying charge was no longer a criminal offense. The conviction had been vitiated not by the defendant's repudiation of the plea bargain but by a change in the law. The defect in question had nothing to do with the plea, but would have compelled reversal had the defendant been convicted of the same offense in a trial. To deny him the substantial benefit of the bargain would unfairly aggrieve him for taking a successful appeal. Therefore, he was granted the substantial equivalent of what he had bargained for: the People could reinstate all viable charges, but could not obtain a sentence more severe than that which he had received under the bargained-for charge.

"The situation in Collins is not analogous to the facts of this case. Defendant flatly repudiated his bargain by withdrawing his guilty plea. He thereby intentionally relinquished the protection of the original plea bargain, consenting instead to set the matter at large. The principles of Collins did not preclude the imposition of a sentence more harsh than that originally imposed." (People v. Aragon (1992) 11 Cal.App.4th 749, 760 (Aragon), italics added.)

Defendant reasons that had he gone to trial on the time-barred charges and appealed, he could have challenged them on appeal. Therefore, as stated in Aragon, "The defect in question had nothing to do with the plea, but would have compelled reversal had the defendant been convicted of the same offense in a trial." (Aragon, supra, 11 Cal.App.4th at p. 760.)

We disagree. Unlike in Collins, defendant received a lawful sentence on charges that stated viable offenses, based on his plea. The fact that defendant may have had a viable defense to some counts, based on the interposition of the statute of limitations, is not a fact external to the plea. Further, absent the plea bargain, defendant might well have been convicted of the dismissed counts. By entering into his bargain, defendant capped his prison exposure, which was a tangible benefit to him. In such circumstances, the "defect" is internal to the plea, because the parties were unaware that most of the charges were facially time-barred. Therefore, defendant is not entitled to any artificial limit on his exposure, if he repudiates his plea bargain. (Aragon, supra, 11 Cal.App.4th at pp. 759-760; see People v. Bean (1989) 213 Cal.App.3d 639, 646 ["Having successfully overturned his bargain, defendant will be placed in the position he faced prior to any plea bargain[.]"].)

Defendant also contends the counts dismissed by the plea bargain must remain dismissed because reinstating them would endorse a violation of Proposition 8. The four dismissed counts charged residential child molestation (§ 288.5--count 1) and lewd acts with a child (§ 288, subd. (a)--counts 2, 20 and 21). These are "serious" felonies. (§ 1192.7, subd. (c)(6) & (35).) Appended to counts 2, 20 and 21, were multiple victim allegations. (§§ 667.61, subd. (e)(5), 1203.066, subd. (a)(7).) Defendant reasons that because it would have been improper for the prosecutor to move to dismiss serious charges simply to facilitate a plea bargain, the prosecutor must have concluded there was insufficient evidence to proceed, and, therefore, we should not allow them to be reinstated. He accuses the Attorney General of "requesting relief in equity to enforce an unlawful quid pro quo" and argues the People should not be allowed to take advantage of their wrongdoing, that is, unlawfully bargaining away serious felonies.

We are not persuaded by defendant's reasoning or by his aspersions against the Attorney General and the prosecutor.

Under Proposition 8, serious felony charges may not be the subject of plea bargaining unless "there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." (§ 1192.7, subd. (a)(2); see People v. Tung (1994) 30 Cal.App.4th 1607, 1611.) The trial court could rationally conclude that, given the counts defendant was admitting and the sentencing range of up to 20 years four months, the dismissed counts would not have led to a substantially greater sentence. It is up to the trial judge to determine what is a "substantial" reduction of a sentence, and we presume trial judges will make this determination in a given case with fidelity to Proposition 8. (People v. Arauz (1992) 5 Cal.App.4th 663, 668-671.) The trial court approved this plea bargain, impliedly indicating its conclusion that the bargain was lawful, and we see no reason to disagree with that conclusion, far less any reason to speculate about possible evidentiary problems with the dismissed counts.

Further, we have previously held that a defendant who accepts a plea bargain is estopped to attack it by claiming the bargain violates Proposition 8. (People v. Webb (1986) 186 Cal.App.3d 401, 410-412.) If the charges were dismissed improperly, it would be appropriate to reinstate them, rather than sanctioning a violation of the will of the People and giving defendant a windfall. (See People v. Claire (1991) 229 Cal.App.3d 647, 654 [limitation on plea bargains designed "to protect the public from lazy or inefficient prosecutors, not to benefit a criminal defendant"].)

On remand, the trial court shall conduct a hearing to determine which, if any, charges are factually time-barred, other than those as to which defendant waived the statute of limitations. If any other charges are time-barred, defendant shall be allowed to repudiate the plea bargain, in which case the dismissed charges shall be reinstated.

II. Sentencing Issues

In case the plea bargain is not repudiated, we address and reject defendant's attacks on the sentence imposed.

A. Denial of Probation

Defendant builds an elaborate argument contending the trial court did not properly exercise its discretion in denying probation. As the Attorney General contends, defendant's "arguments are built on sand."

As provided by the written plea agreement, and repeatedly confirmed by trial counsel, the plea agreement specified a range of prison sentences, with a minimum of six years and a maximum of 20 years four months, and defendant initialed a box indicating he was not eligible for probation. As the trial court correctly noted at sentencing, the plea bargain itself rendered defendant ineligible for probation.

Defendant constructs his argument based on snippets of the record that, in his interpretation, left open the possibility of probation. For example, in taking the plea, no doubt using a standard script, the trial court at one point stated that there was no minimum requirement of a prison sentence. However, the trial court then correctly advised defendant that the plea called for a "minimum period of incarceration" of six years. Defendant also points to the probation department's initial conclusion that he was statutorily eligible for probation. However, that does not change the fact that the plea bargain made him ineligible for probation. Again, the record clearly shows that trial counsel, the prosecutor and the trial court all understood that probation was precluded by the plea bargain.

B. Amended Probation Report

Defendant contends the prosecution exercised undue influence on the probation department to get it to change its initial lenient recommendation. In short, he contends the prosecution intimidated the probation officer, in part by threat of a subpoena, into changing a favorable report into an unfavorable report, and this constituted a breach of the covenant of good faith implicit in any contractual relationship, including a plea bargain. We disagree.

As the Attorney General notes, this issue was fully litigated in the trial court, based on the declarations of two prosecutors, a victim advocate, the probation officer, her supervisor, and the assistant chief probation officer. The trial court concluded no wrongdoing occurred. Based on the record, we see no reason to disturb that finding.

The initial probation report, filed on November 24, 2009, and signed by Deputy Probation Officer Tammy Drew and Adult Unit Supervisor Allan Sullivan, recommended probation.

The amended probation report, filed on December 7, 2009, and signed by Drew and Assistant Chief Probation Officer Teri Hall, recommended 20 years four months in prison.

In response, defendant moved for recusal of the district attorney's office, a new probation report to be prepared or the second one to be stricken, and sanctions.

Declarations in the record explain the change in the probation department's position as follows.

Kathleen Storm, a victim advocate in the district attorney's office, declared that when she saw the first probation report, she told the victims about it, and both victims told her they had been told they had until December 1, 2009, to submit their written statements. Because the trial prosecutor, Yook, was out sick, Storm spoke with prosecutor Pfeil about this problem. Later, she received a call from Allan Sullivan, a probation supervisor, who stated the first report was a mistake.

Deputy District Attorney Pfeil spoke with Tammy Drew on December 1, 2009, to discuss her reasons for recommending probation, and declared that Drew reported she "did not know what she was doing and was getting no help" and had used a probation report in an unrelated case to prepare her report. Pfeil suggested that Drew "seek out guidance from a more experienced probation officer and to please consider the victim[] impact statements. Ms. Drew agreed to do so. I told Ms. Drew that while the district attorney's office viewed this case as a prison case, I did not want to influence her opinion. I told her that if, after reading the [victim] impact statements and gaining more knowledge of the law relevant to this type of case, she still was of the opinion that this was a probation case, then to stick with her recommendation." Later that day, Allan Sullivan told Pfeil "that he was very sorry that he let the probation report go through to the Court. He told me that he made a mistake and that he would 'own it'" and see that a new report was prepared after consideration of the victim impact statements. After Pfeil learned the plea bargain precluded probation entirely, she left messages for Drew and Sullivan conveying that fact.

Drew's declaration conceded she "had only been in the report writing assignment for three months" and never wrote "a report of this complexity." After she spoke with Pfeil, she and Sullivan "discovered the plea form in the file." Drew's conversation with Pfeil did not influence her "amended probation report and different recommendation."

Sullivan, the probation unit supervisor, declared the first report "was flawed, incomplete and should have never been filed." "The sole purpose and motivation of probation in the amended report was to accomplish a thorough, fair and objective report which we failed to do initially."

Hall declared that after she learned there was a problem, she reviewed both reports, then "signed the amended report and filed it with the Court the same day."

The trial prosecutor, then Assistant District Attorney Yook, declared that she had had no contact with the probation department, but had issued subpoenas for Drew and Sullivan for the sentencing hearing, which were not served. Yook had not asked Pfeil to contact Drew and did not learn of that contact until after it took place.

In denying the motion to recuse the district attorney, the trial court noted that defendant was not prejudiced because "this Court is the one who is going to sentence [defendant] notwithstanding the recommendation of the Probation Department." The court also noted that there was no claim that the trial prosecutor, Yook, had done anything wrong. "That removes any potential conflict one step further. I cannot say that [defendant] has met his burden of persuasion in this case; a lot of it is speculative conjecture." In denying the motion for a new probation report, the court stated it had both reports and "can weigh and consider the differences. I don't think it's necessary to have another report from the independent agency."

As indicated earlier, at sentencing the trial court stated it "was a little shocked" when it read the initial probation report. Given that the probation report was prepared without considering the plea bargain and without considering the victim impact statements, this shock is understandable.

The declarations in the record do not show that the prosecutor coerced a change in the report. Instead, they show that the probation office was made aware of grievous flaws in the first report, and that after those flaws were pointed out, the probation department prepared an amended report. Deputy Probation Officer Drew declared that her second report was not influenced by her conversation with prosecutor Pfeil. Drew's supervisor, Sullivan, declared that the first report was flawed and the purpose of the second report was to provide "a thorough, fair and objective report which we failed to do initially."

Defendant relies on People v. Villareal (1977) 65 Cal.App.3d 938 (Villareal), but that case is distinguishable. There, a plea bargain was reached by a deputy prosecutor, and approved by his supervisor, that provided for county jail time for two defendants accused of selling drugs, and the probation officer so recommended in his report. (Id. at pp. 941-943.) However, when the district attorney learned a deputy prosecutor had entered into a bargain for local time in a drug sales case, he viewed this as a breach of his office policy, and he told the chief probation officer that the defendants should go to prison. The chief probation officer later announced to his staff that it was his policy not to recommend local time in such cases, and ordered supplemental reports to be prepared, recommending prison sentences. (Id. at pp. 943-944.)

On these facts, the Court of Appeal, Fifth Appellate District, held: "It cannot be denied that the district attorney was guilty of a gross impropriety. He not only deliberately breached a plea bargain entered into by his deputies, but he also made a successful, ex parte attempt to induce the probation department to change its favorable recommendations even though the probation reports were completed and filed with the superior court in anticipation of a presentencing hearing. [Citations.] If the district attorney believed that his deputies exceeded their authority when they entered into the plea bargains . . . or if he felt that there was a change in circumstances warranting new and different recommendations as to the sentences to be imposed, he should have notified defense counsel promptly and then presented his position to the court in a forthright manner at or before the presentencing hearing." (Villareal, supra, 65 Cal.App.3d at pp. 944-945.) The court emphasized that "in preparing presentencing reports, probation officers should evaluate each case on its own merits, unfettered by fixed and inflexible policies adopted to conform with the ideas of prosecuting authorities." (Id. at p. 945.) The remedy was to remand for the trial court to order a new probation report prepared by another county. (Id. at p. 946.)

Assuming Villareal was correctly decided on its facts, this case is nothing like Villareal, which involved a policy dispute. Here, the prosecution alerted the probation department of obvious errors in the report, namely, the failure to consider the terms of the plea bargain and the failure to consider the victim impact statements. The probation department admitted the errors and prepared a new report. The new report was unfettered by the prosecution's views, according to the declarations, and was based on a more complete evaluation of the case. In such circumstances, the trial court properly denied the defense motions.

Further, the trial court had the benefit of both probation reports, and made its own determination of the appropriate sentence. Accordingly, even if we agreed that any impropriety occurred--other than within the probation department--we would find any error harmless. As stated in a case rejecting a claim of undue interference with the probation department, and also distinguishing Villareal: "[T]he recommendation within the probation report is advisory only, provided in order to assist the sentencing court in determining an appropriate disposition after conviction, and may be rejected in toto. [Citation.] Consequently, '[i]n the final analysis [the sentencing] determination is a matter of judgment for the court, not the probation officer.'" (People v. Server (1981) 125 Cal.App.3d 721, 728.) The same is true here: The trial court was aware of the two reports and made its own decision; therefore, any purported "undue" influence by the prosecutor was harmless.

C. Upper Term Sentence

Defendant contends the trial court's imposition of the upper term on the principal count, count 12, based on facts not found true by a jury, violated his Sixth Amendment right to a jury trial, and ex post facto principles. He concedes his claims have been rejected by controlling California Supreme Court authority, but seeks to preserve them for further review. We agree the claims lack merit under controlling precedent. (People v. Sandoval (2007) 41 Cal.4th 825; see People v. Pham (2009) 180 Cal.App.4th 919, 930-931.)

DISPOSITION

The judgment is reversed with directions to the trial court to determine which, if any, of the charges to which defendant pleaded guilty are factually time-barred, and to allow defendant to withdraw his plea if any are found to be time-barred. If no

charges are time-barred or if defendant fails to elect to withdraw his plea, the trial court shall reinstate the judgment.

We concur: NICHOLSON , Acting P.J. MAURO ,J.


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