People v. Hattan
| Decision Date | 22 September 2021 |
| Docket Number | H046904 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. GARTH TODD HATTAN, Defendant and Appellant. |
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS170561
Defendant Garth Hattan was granted probation with execution of a prison sentence suspended after pleading no contest to one count of possessing methamphetamine for sale and admitting a prior conviction. When he violated probation, the trial court ordered the prison sentence executed. Defendant contends the court abused its discretion by executing the sentence without considering whether to reinstate probation. He also contends he is entitled to retroactive application of ameliorative legislation that would reduce his sentence. We find no abuse of discretion in terminating defendant's probation. He is, however, entitled to application of the later-enacted legislation. We will therefore order the judgment modified to strike the prior conviction enhancement, the narcotics offender registration requirement, and certain fees. We will affirm the judgment as modified.
Defendant pleaded no contest in 2017 to possessing methamphetamine for sale (Health & Saf. Code § 11378) and admitted a prior controlled substance conviction (Health & Saf. Code § 11370.2, subd. (c)). Under a negotiated disposition defendant was to be granted probation for three years with execution of a five-year prison term suspended (three years for the substantive offense and a consecutive two years for the prior conviction enhancement). Before defendant entered his plea, the trial court warned him, The court further advised, “If you violate probation, you can expect to be sentenced [sic] to state prison for a period of five years on the first violation.” When defendant appeared for sentencing, consistent with the negotiated disposition he was granted probation with execution of a five-year prison term suspended. The trial court commented:
About a year and a half later, defendant violated his probation by testing positive for methamphetamine and being arrested for using it. The district attorney petitioned for revocation of defendant's probation. Defendant admitted the violation but argued probation should be reinstated because the violation was an isolated mistake for which he was remorseful. He submitted letters from community members expressing support for him. The probation department's recommendation was to terminate probation and send defendant to prison, and the District Attorney asked the court to follow that recommendation.
The trial court executed the suspended five-year prison term, telling defendant,
Defendant contends the trial court abused its discretion by terminating his probation and executing the suspended prison sentence. He argues that the judge's comments at the time of his no contest plea-for instance, that it was “very, very, very likely” he would be sent to prison for any probation violation-demonstrate the court predetermined the outcome of a violation and acted on that predetermination rather than based on an informed exercise of discretion. He alternatively argues the court was unaware of the scope of its sentencing discretion when execution of a prison sentence had previously been suspended.
We first note defendant has forfeited the issue. No objection was made when the trial court executed the sentence nor was there any argument suggesting the court predetermined the outcome. Had such an objection been raised, the trial court could have explained in more detail its considerations in exercising its discretion. Depriving the trial court of that opportunity forfeits the claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) We will nonetheless address the issue on its merits because it is a claim of sentencing error that implicates defendant's substantial rights. (People v. Scott (2012) 203 Cal.App.4th 1303, 1311.)
A trial court has broad discretion in criminal sentencing, including the treatment of probation violations. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) On proof of a violation, the court may either reinstate probation on the same terms, reinstate it with modified terms, or terminate it and sentence the defendant to state prison. (Ibid.) A trial court abuses its discretion by predetermining an outcome, as the failure to exercise discretion is itself an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) It likewise constitutes an abuse of discretion when a court makes a decision unaware of the discretion it has. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) But a defendant attacking a sentence on appeal has the burden to affirmatively demonstrate the trial court misunderstood its discretion or otherwise abused it. (People v. Lee (2017) 16 Cal.App.5th 861, 866.) Absent such a showing, we presume the trial court fully understood the scope of its discretion and acted in conformity with the law. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) On this record, defendant has not overcome that presumption.
We acknowledge one of the trial court's comments at sentencing, viewed in isolation, could be interpreted to suggest it would not exercise discretion in the event of a probation violation: But a review of all the court's comments in the context of the entire record do not indicate a failure to exercise discretion. At the hearing on the probation violation, the court expressly stated it had considered the arguments from both sides, and it then made an express finding supporting the decision to terminate probation: We caution that a trial court must take care to avoid creating the impression that a sentencing decision has been predetermined, even when intending to deter a defendant from violating probation and facing the attendant risk of state prison. But here defendant has not overcome the presumption that the trial court acted in conformity with the law when it terminated his probation.
Nor do we see merit in defendant's alternative argument that the trial court was unaware it had discretion to reinstate probation upon a violation when execution of a sentence is suspended. The court's comments indicate it understood a prison sentence was not mandatory on a violation, but rather that it was a likely outcome: (See People v. Medina (2001) 89 Cal.App.4th 318, 323 [].)
Defendant seeks retroactive application of several ameliorative changes in the law that took effect after his initial grant of probation. We agree that the relevant legislation applies retroactively here. “When a statute is amended to reduce the punishment for a criminal act, it is presumed that the Legislature intended the lighter penalty to apply retroactively ‘to every case to which it constitutionally could apply.' ” (People v. Lopez (2020) 57 Cal.App.5th 409, 413, quoting In re Estrada (1965) 63 Cal.2d 740, 745.) Retroactive application is constitutionally permissible so long as the judgment in the case in question is not yet final, and it does not constitute a final judgment when a defendant is placed on probation with execution of a prison sentence suspended. (People v. Esquivel (2021) 11 Cal.5th 671, 678.) The judgment in a case where a suspended sentence is later executed becomes final only after the defendant has exhausted all opportunity for direct appellate review of the order executing the sentence. (Ibid.) Defendant's judgment is therefore not yet final and we will apply the new legislation as described below.
Defendant accepted a disposition that included two years in state prison based on his admission of a prior controlled substance conviction. (See former Health and Safety Code section 11370.2, subdivision (c).) Effective January 1, 2018, the Legislature a...
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