People v. Downey
| Decision Date | 02 August 2000 |
| Docket Number | No. B136294.,B136294. |
| Citation | 98 Cal.Rptr.2d 627,82 Cal.App.4th 899 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Robert John DOWNEY, Jr., Defendant and Appellant. |
Robert J. Waters, Santa Monica, and Ross A. Nabatoff, Washington, D.C., for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, William T. Harter and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.
Robert John Downey, Jr., appeals from the judgment entered following revocation of probation previously granted upon his plea of no contest to possession of cocaine, misdemeanor driving under the influence of alcohol and/or drugs, misdemeanor possession of a concealed firearm in a vehicle, and misdemeanor being under the influence of a controlled substance. (Health & Saf.Code, § 11350, subd. (a); Veh.Code, § 23152, subd. (a); Pen.Code, § 12025 subd. (a)(1); Health & Saf.Code, § 11550.) He was sentenced to three years in prison, with jail terms imposed on the misdemeanors.
Appellant contends that (1) the trial court erroneously believed it was required to impose a consecutive term for the felony offense; (2) the misdemeanors must be deemed to run concurrently with each other because the trial court failed to designate how they were to run in relation to each other; (3) since the misdemeanor counts must be deemed to run concurrently, the custody credits exceeding the time imposed on these counts must be applied to the felony count; (4) if the misdemeanor counts are deemed to run consecutively, credit for 240 days in county jail imposed as a condition of reinstating probation should apply to each of the probationary counts; (5) the trial court failed to state reasons for imposing a state prison term; (6) the trial court erroneously relied on circumstances after appellant was granted probation to impose the upper term for the felony offense; (7) the trial court relied on incorrect facts and impermissible factors in selecting the upper term; (8) the trial court improperly found aggravating factors stemming from appellant's addiction; (9) the trial court failed to consider appellant's addiction and his voluntary entry into a rehabilitation program as factors in mitigation; (10) the trial court did not give defense counsel an opportunity to object to the sentence; (11) assuming the misdemeanor counts run consecutively to each other, the trial court failed to state reasons for imposing them consecutively to each other and for imposing the felony sentence consecutively to the misdemeanors; (12) the trial court abused its discretion in not reinstating probation and in imposing a prison term; (13) the trial court erred in failing to institute civil proceedings to consider a California Rehabilitation Center (CRC) commitment; and (14) the $600 restitution fine and the $600 parole revocation fine imposed at the time of sentencing after revocation of probation must be reduced to $200, the amount imposed at the time probation was granted.
The probation report discloses that on the morning of June 23, 1996, after appellant was stopped for speeding, a sheriffs deputy smelled burnt marijuana inside appellant's vehicle and commenced a narcotics investigation. The deputy recovered a container holding a substance resembling cocaine in powder form, another container holding a similar substance as well as a substance resembling tar heroin, and a baggie containing Valium, unidentified pills and a substance resembling rock cocaine. Under the seat was an unloaded revolver, and in the glove compartment was a box containing four .38 special rounds. Appellant's urine tested positive for morphine/heroin, marijuana, Valium and cocaine. He was arrested and released on bail.
On July 16, 1996, the sheriffs department was called by a person who found appellant unconscious in a bed in a private residence. Deputies were unable to revive appellant, who appeared to be under the influence of a controlled substance. Appellant was taken to a hospital, where he refused to be treated and refused to provide a urine sample. He was transferred to a hospital jail ward.
Appellant was charged in count 1 with possession of cocaine, in count 2 with possession of heroin, in count 3 with driving under the influence, and in count 4 with possession of a concealed firearm in a vehicle, these four counts based on events occurring on June 23,1996. He was charged in count 5 with being under the influence of a controlled substance on July 16, 1996. On July 29, 1996, appellant entered not guilty pleas, and the trial court released him to a secure rehabilitation program. On September 11, 1996, pursuant to a plea agreement, appellant entered an open no contest plea to counts 1, 3, 4, and 5. It was agreed that he would not receive an immediate prison sentence.
On November 6, 1996, the trial court suspended imposition of sentence and placed appellant on summary probation for three years on counts 1, 3, and 4, imposing nine days in county jail and awarding credit for nine days served.1 Among the conditions of probation, appellant was ordered to remain in his inpatient rehabilitation program for at least six months and then to enter an outpatient program. As to count 5, the trial court denied probation and sentenced appellant to 90 days in county jail with credit for 90 days spent in the inpatient rehabilitation program. Count 2 was dismissed.2
On April 22, 1997, the trial court modified appellant's terms of probation to enable him to be insurable and thus to obtain gainful employment as an actor, stating that the "thrust" of appellant's probation was to effect his rehabilitation and that employment was "the one important ingredient to rehabilitation." In the event of an alleged probation violation, a hearing would be set so as not to interfere with appellant's immediate shooting schedule, and the trial court would stay execution of any in-custody time resulting from a finding of violation of probation until completion of appellant's participation in film production as required by contract. In addition, the trial court required random drug testing by an outside laboratory twice a week.
On October 17, 1997, appellant's drug rehabilitation counselor, who had been working with appellant on location, testified that appellant had ingested alcohol and controlled substances over a period of four or five days and had not completed his required drug testing. The trial court stated it would have remanded appellant to custody immediately but for the modified terms of probation. The court imposed additional terms of probation including residence at a secure facility, daily drug testing, and employment of a 24-hour bodyguard. The matter was continued to December 8, 1997, to permit appellant to comply with his contractual obligations.
On December 8, 1997, the trial court found, based on appellant's counselor's earlier testimony, that appellant had ingested controlled substances and/or alcohol and had refused to submit to testing in violation of the terms and conditions of probation. Appellant's probation on counts 1, 3, and 4 was revoked and reinstated for three years, commencing on that date. Appellant was ordered to serve 240 days in county jail with credit for 60 days for time spent in the lockdown facility prior to the hearing, with orders that he enroll in a residential drug rehabilitation program of his choosing at the conclusion of the jail term. The court stated,
On March 19, 1998, a hearing was held to review the terms of appellant's upcoming release from custody into a residential program. The trial court modified the conditions of probation, providing, inter alia, for daily drug testing, and ordered appellant to enter an outpatient program after he spent 120 days in the inpatient program. The court advised appellant that "we have already exhausted the rehabilitative spectrums for programs" and that if he were found in violation of probation, he would go to prison, stating, Appellant replied, "Yes, I do."
On June 22, 1999, appellant waived his right to a formal probation violation hearing and admitted that he had failed to submit to testing in violation of probation. Probation was revoked and appellant was remanded to the Los Angeles County Sheriff for housing in the custodial Impact drug treatment program, located at the Biscailuz Recovery Center. Sentencing was continued to August 5, 1999.
At the sentencing hearing, the court considered the testimony of the admissions director at the Impact program, who stated that appellant was progressing well in the Impact program and recommended that he complete the program. The court also considered the supplemental probation report, which recommended reinstatement of probation; a series of negative drug test results; reports from appointed psychiatrists; and a letter from the program coordinator at the Impact treatment center, who recommended that appellant continue treatment there. Defense counsel argued that, consistent with the views of the experts whose reports the court had considered, appellant should be continued on probation and permitted to continue at the Impact program. The...
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