People v. Howard, No. S058197

• Court: United States State Supreme Court (California)
• Writing for the Court: CHIN; GEORGE; MOSK; KENNARD
• Citation: 68 Cal.Rptr.2d 870,16 Cal.4th 1081,946 P.2d 828
• Parties: , 946 P.2d 828, 97 Cal. Daily Op. Serv. 8952, 97 Daily Journal D.A.R. 14,473 The PEOPLE, Plaintiff and Respondent, v. Cadelia Louise HOWARD, Defendant and Appellant
• Docket Number: No. S058197
• Decision Date: 01 December 1997

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68 Cal.Rptr.2d 870 16 Cal.4th 1081, 946 P.2d 828, 97 Cal. Daily Op. Serv. 8952, 97 Daily Journal D.A.R. 14,473 The PEOPLE, Plaintiff and Respondent,
v.
Cadelia Louise HOWARD, Defendant and Appellant. No. S058197. Dec. 1, 1997.

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[16 Cal.4th 1083] [946 P.2d 829] Robert T. Kawamoto, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, [16 Cal.4th 1084] Stan M. Helfman and Sharon G. Birenbaum, Deputy Attorneys General, for Plaintiff and Respondent.

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[946 P.2d 830] CHIN, Justice.

When the trial court in a criminal case decides at time of sentencing to grant the defendant probation, the court may either suspend imposition of sentence or actually impose sentence but suspend its execution. (See Pen.Code, § 1203.1, subd. (a).) ¹ If the court has suspended imposition of sentence and later revokes the defendant's probation, then the court has undisputed authority to choose from all the initially available sentencing options. (§ 1203.2, subd. (c).) If instead the court actually imposes sentence but suspends its execution on granting probation, and the sentence becomes final and nonappealable, does the court retain similar authority to impose a new sentence different from the one previously imposed?

In this case, we resolve a conflict among Court of Appeal decisions regarding a trial court's authority, on revoking probation, to reduce a probationer's previously imposed but suspended sentence. We conclude that if the trial court has suspended imposition of sentence, it ultimately may select any available sentencing option. However, if, as here, the court actually imposes sentence but suspends its execution, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitment stage (see § 1170, subd. (d)), to reduce the imposed sentence once it revokes probation.

I. FACTS

The following facts are taken largely from the Court of Appeal opinion. Cadelia Louise Howard (defendant) appeals from the San Francisco Superior Court's order revoking her probation and ordering execution of a four-year prison sentence. The court imposed that sentence on October 25, 1994, but suspended its execution after defendant pleaded guilty to one count of transportation of cocaine base (Health & Saf.Code, § 11352, subd. (a)). (The record is unclear whether the parties agreed to the four-year sentence as part of a plea bargain resulting in the dismissal of the remaining counts. It is undisputed, however, that defendant did not challenge the four-year sentence on appeal after the court originally imposed it. Following imposition of sentence, defendant appealed from the denial of her motion to withdraw her guilty plea, but she did not question the validity of her sentence on appeal.)

[16 Cal.4th 1085] Defendant contends she is entitled to a remand for resentencing because the trial court improperly failed to exercise its discretion to impose a mitigated sentence of three years, based on evidence that she had reliably reported to her probation officer, had tested negative for drug use, had maintained steady employment, and had complied with her other probation conditions.

At defendant's probation revocation hearing in June and July 1995, the parties adduced the following evidence: During the evening of April 14, 1995, San Francisco Police Officers John Monroe and Paul Lozada were on duty in the narcotics division. They received a telephone call from an anonymous informant, stating that defendant was selling drugs from 2026 Lane Street in San Francisco. Monroe determined that defendant lived at that address and that she was on probation with a condition permitting a warrantless search of her person and residence. The officers then went to the Lane Street address, confronted defendant standing outside, and announced that they were going to execute a probation search. Defendant immediately turned and went into her apartment, walking toward the rear of the apartment with her back to the officers. Lozada saw defendant reach into her pants and make a motion with her hand extended in the direction of a chair. When she turned around, Lozada told Monroe that defendant had thrown a bag of white powder on a chair. Monroe saw the bag and seized it. The parties stipulated the bag contained .26 grams of cocaine. Lozada arrested on drug possession charges two other people present at the Lane Street address that night: a woman who claimed to be Dolores Shaw (but was actually Cheryl Brooks), and Jerome Gray. Gray had cocaine in his pocket, and Brooks had cocaine in a brown coin purse in her pocket. Neither Brooks nor Gray was

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[946 P.2d 831] near the chair on which the officers found the bag of cocaine.

In her defense, defendant denied possessing or throwing any drugs. She claimed that she was unaware anyone else at the Lane Street residence had any drugs, and she denied that the apartment was rented in her name.

Paul Bryant claimed he was at the Lane Street address on the night of April 14, 1995, and was playing pool when "four or five" police officers arrived. Bryant denied seeing anything in defendant's hands and said he did not see her throw anything away.

Eric Murphy, who owned the beauty shop at 5273 Third Street that adjoined defendant's premises, testified that he, too, was playing pool with defendant when the police arrived. Murphy said defendant was holding a pool cue, and nothing else, in her hands when the police came in and handcuffed her.

[16 Cal.4th 1086] The real Dolores Shaw testified that she was watching people play pool that night, but went to the beauty shop when she heard the police coming. She claimed that a "tall guy" (who she believed was Jerome Gray) tossed something and then went out the back door to the beauty shop. Shaw said the only thing defendant had in her hands was a pool cue.

Defendant called two other witnesses, Stephano Martinez and Marian Sullivan, who testified about her employment. Martinez said that he had employed defendant in his janitorial service since the end of February 1995 and that she was a good worker. Sullivan said he had owned a business called Sullivan's Video Games and had employed defendant there for approximately one year as a collector and repair trainee. Sullivan, too, said defendant was a good and honest employee with whom he had "no problems ... whatsoever."

After the April 14, 1995, incident, Senior Probation Officer Tuan Dam prepared a supplemental probation report recommending defendant be continued on probation because she had complied with the terms and conditions previously imposed. Defendant's supervising probation officer, William Rhue, confirmed that defendant had tested negative for drug use and reported to him monthly as required. These witnesses admitted, however, that defendant would be in violation of her probation if she were found in possession of cocaine. Rhue also testified that defendant reported having a job but, when asked to provide pay stubs to verify her employment, failed to provide him with the requisite proof.

At the conclusion of the hearing, the court found that defendant had violated the terms of her probation, in that "a significant amount" of cocaine was found in her possession at the time of her arrest. The court then ordered into execution the sentence of four years in state prison, adding only that "further probation is not appropriate in this case."

II. DISCUSSION

Defendant does not contend the evidence is insufficient to support the trial court's findings that she violated both the express and implied terms of her probation by being in possession of cocaine on the evening of April 14, 1995, and that further probation was not appropriate. Her only contentions on appeal are: (1) on revoking her probation, the trial court had discretionary authority to reduce her previously imposed, but suspended, four-year prison sentence to the mitigated term of three years (Health & Saf.Code, § 11352, subd. (a)); and (2) the court abused its discretion by failing to consider the mitigating factors she presented at the probation revocation [16 Cal.4th 1087] hearing. Our rejection of defendant's initial contention disposes of her appeal.

The proper disposition of this case rests upon the important distinction, in probation cases, between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences. We must also consider whether our decision in People v. Karaman (1992) 4 Cal.4th 335, 14 Cal.Rptr.2d 801, 842 P.2d 100 (Karaman ) has blurred that distinction and expanded trial courts' sentencing authority in probation revocation cases involving suspended execution sentencing orders.

If the trial court in 1994 had originally suspended imposition of sentence before

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[946 P.2d 832] placing defendant on probation, the court unquestionably would have had full sentencing discretion on revoking probation. When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. (People v. Banks (1959) 53 Cal.2d 370, 386, 1 Cal.Rptr. 669, 348 P.2d 102; Stephens v. Toomey (1959) 51 Cal.2d 864, 871, 338 P.2d 182.) The probation order is considered to be a final judgment only for the "limited purpose of taking an appeal therefrom." (People v. Superior Court (Giron ) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636.) On the defendant's rearrest and revocation of her probation, "... the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced." (§ 1203.2, subd. (c); see also Cal. Rules of Court, rule...