IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
March 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
WALDO CURTIS BUSCALL, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR73170)
The opinion of the court was delivered by: Hull ,j.
P. v. Buscall 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In June 2008, defendant Waldo Curtis Buscall pleaded guilty to one count of selling or transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). In exchange, defendant received a four-year prison term, imposition of which was stayed; he was then ordered to serve three years of formal probation. Defendant subsequently violated his probation, his probation was revoked, and he was ordered to serve the previously stayed prison term. Defendant appeals from that order.
Finding no error, we affirm the court's order.
FACTS AND PROCEEDINGS
In January 2008, defendant was charged with selling or transporting marijuana in violation of Health and Safety Code, section 11360, subdivision (a). It was further alleged that within the prior five years, defendant served a prison term (Pen. Code, § 667.5, subd. (b)).
Defendant pleaded guilty to the charge of selling or transporting marijuana. In exchange, the sentencing enhancements were dismissed. Defendant and the prosecution stipulated to a suspended sentence of four years in state prison, with defendant serving three years' formal probation.
Defendant's probation was imposed with the usual terms, but defendant and the prosecution agreed to additional terms as reported in the record: "[Defense counsel MR. MILLER:] There would be one additional proviso in that should any violation of the law at the misdemeanor grade or above would automatically trigger a commitment to the California Department of Corrections to serve out the four-year sentence.
"THE COURT: What about violations of probation?
"MR. MILLER: Those would be set--That violation of probation as set forth by the probation officer, such as a dirty test, or failure to test, or failure to report to the probation officer as directed.
"THE COURT: Counsel for the People, is that your agreement?
"MR. ROGERS: That is, your Honor, yes.
"THE COURT: Speaking to the Defendant, this is what's referred to as a plea bargain. I imagine you considered which--what the possibilities are, and in return for this agreement you would be allowed to be at liberty and on probation, with a guarantee that you do not serve any further time; however, with the disability or the liability that if you violate the law or probation that you would be going to state prison for four years. Do you understand all that?
"THE DEFENDANT: Yes. Sir."
Defendant was later sentenced to probation consistent with his plea.
Then, in April 2009, while defendant was on probation, a police officer observed him driving a truck that was missing operative lights and a license plate. While writing defendant a citation, the officer observed behavior which, based on his training and experience, led him to believe defendant was under the influence of a controlled substance. The officer's suspicions were confirmed by field testing.
The officer asked defendant if he had taken any drugs. Defendant initially said he had not but soon admitted to having used methamphetamine within the last two days. Defendant asked the officer to "give him a break" because he had a prison sentence "hanging over his head."
The officer arrested defendant and took him to the police station, where additional nonchemical testing further confirmed the officer's suspicions that defendant was under the influence of methamphetamines. Defendant then gave the officer a urine sample, which the officer sent to the Department of Justice for analysis.
A petition to revoke defendant's probation was subsequently filed alleging defendant violated the following terms of his probation: "Term 3 requires the defendant obey all laws and conduct himself as a good citizen. [¶] "Term 14 requires the defendant not use or possess any unlawful substance." The matter went to hearing and the court found defendant in violation of his probation.
At sentencing, defendant argued probation should be reinstated and defendant allowed the opportunity to treat his drug addiction. The People argued otherwise. After hearing argument, the trial court lifted the stay on defendant's sentence: "And I think the Judge gave [defendant] a break. And that was fair, and I have no criticism of that at all. But I think, considering the case now with the facts before this Court, the Court is going to deny any further grant of probation. The stay of the four years is lifted. The Defendant is ordered confined to the California Department of Corrections [and Rehabilitation] for four years."
Abuse of Discretion in Refusing to Reinstate Probation
Defendant contends the trial court abused its discretion in refusing to reinstate his probation. We disagree.
"'Probation is an act of clemency . . . .'" (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The court may modify, revoke, or terminate probation if the probationer has violated any term or condition of probation "if the interests of justice so require." (Pen. Code, § 1203.2, subd. (b).) In considering whether to revoke probation, the court's inquiry is directed "to the probationer's performance on probation." (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) "Thus the focus is (1) did the probationer violate the conditions of his probation and, if so, (2) what does such an action portend for future conduct?" (Ibid.) The trial court is vested with broad discretion in determining whether to reinstate probation following revocation of probation (People v. Jones (1990) 224 Cal.App.3d 1309, 1315), and the trial court's decision to revoke probation is reviewed for an abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) Rodriguez held "'. . . only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .'" (Rodriguez, at p. 443.)
Defendant negotiated a plea agreement whereby his four-year prison term was stayed in exchange for three years of formal probation. As part of defendant's plea, he agreed that if he "violate[d] the law or probation that [he] would be going to state prison for four years." Having received the benefit of his bargain, probation, defendant cannot repudiate an agreed component of his plea. (See People v. Haney (1989) 207 Cal.App.3d 1034, 1037-1038 [a plea bargain is interpreted like a contract].)
Defendant violated his probation by using illicit drugs, the consequence of which, according to defendant's agreement, was imposition of a four-year prison term. Defendant's claim that the urinalysis that, in his view, was improperly admitted at the hearing on the violation of probation somehow impacts this result is not well taken. Paragraph 14 of his conditions of probation ordered him not to use or possess any unlawful substance and the fact that defendant admitted to the arresting officer that he had been using methamphetamine over the two days preceding his arrest was unchallenged. The urinalysis did nothing more than confirm defendant's admissions.
Moreover, the court did not, as defendant claims, limit the grounds upon which defendant's sentence would be imposed to a dirty test or failure to report to the probation officer. Defense counsel gave those only as examples of ways defendant could violate his probation saying, "such as a dirty test, or failure to test, or failure to report to the probation officer as directed." (Italics added.)
It should be evident to defendant, as it is to this court, that under the terms of the plea agreement negotiated by defendant, any violation of probation would result in the immediate imposition of the four-year prison term.
Even if defendant had not agreed that imposition of the four-year prison term would occur upon a violation of probation, the court acted well within its discretion in refusing to reinstate probation. The court here considered defendant's history, his performance on probation, the arguments of counsel, and the reports of the probation officer (who recommended the court deny reinstatement of probation).
The court explained its decision, relying on defendant's multiple probation violations, and the lack of significant progress in recovering from his drug addiction despite having already been given the opportunity to do so. There was simply nothing arbitrary or capricious about the court's decision. On the information before it, the court properly exercised its discretion and determined defendant should not be reinstated on probation.
Failure to Exercise Discretion
Defendant further contends the trial court failed to exercise its discretion in refusing to reinstate probation. Defendant's contention fails. Again, defendant's plea agreement included an agreed upon provision that the four-year prison term would be imposed should defendant violate his probation. Defendant violated his probation and he was sent to prison. That should be the end of the discussion.
The trial court nevertheless considered the probation reports and the arguments of counsel. The court acknowledged that the prior court had given defendant "a break," but given the current circumstances did not believe further probation was warranted. It is evident the court knew of its discretion and exercised it. That the court referred back to the prior court's warning to defendant to get his life together is irrelevant.
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Sen. Bill No. 76), which amended Penal Code sections 4019 and 2933. The amendment gives qualifying prisoners presentence credit calculated at one day of presentence credit for every day of the prisoner's actual presentence confinement. (Pen. Code, § 2933, subds. (e)(1), (e)(2), (e)(3); Stats. 2010, ch. 426, § 1, Sen. Bill No. 76.) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 when the person served an odd number of days in presentence custody, and it eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].)
The trial court awarded 84 actual days and 42 conduct days for a total of 126 days of presentence custody credits. Defendant has asked this court to recalculate his custody credits. Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b), (c).) Having served 84 actual days, defendant is entitled to 84 conduct days for a total of 168 days of presentence custody credit.
While this appeal was pending, the Legislature again amended Penal Code section 4019, but expressly stated the changes to jail inmate credits apply only to crimes committed on or after the effective date of the legislation, September 28, 2010. (Stats. 2010, ch. 426, § 2 [Sen. Bill No. 76].)
The judgment is modified to provide 84 conduct days for a total of 168 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment accordingly and to
forward a certified copy to the Department of Corrections and Rehabilitation.
BUTZ , P.J.
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