People v. Lopez
| Decision Date | 24 June 2020 |
| Docket Number | B289577 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ARMANDO CONTRERAS LOPEZ, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. LA084142 and LA084433-02)
APPEAL from an order of the Superior Court of Los Angeles County, Eric P. Harmon, Judge. Remanded with directions.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Susan Sullivan Pithey, Zee Rodriguez and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
____________________ Armando Contreras Lopez appealed the trial court's order terminating probation and ordering execution of his suspended eight-year county jail term for one count of driving or taking a vehicle without consent after a prior conviction and one count of receiving a stolen motor vehicle after a prior conviction. Lopez argued the trial court had erred in relying on a probation report without formally admitting the report into evidence. Lopez also argued the court had erred by imposing fines and fees without considering his ability to pay. In a nonpublished opinion filed September 16, 2019, we affirmed the revocation of probation and imposition of the suspended sentence and remanded the matter for the trial court to give Lopez the opportunity to request a hearing to present evidence demonstrating his inability to pay the applicable fines, fees and assessments.
Lopez's eight-year sentence included three one-year enhancements for prior prison or jail terms he had served, imposed pursuant to Penal Code section 667.5, subdivision (b).1 Before our decision became final, the Governor signed into law Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136), which, effective January 1, 2020, amended section 667.5, subdivision (b), to apply only where the prior prison terms had been served for a sexually violent offense. Lopez petitioned for review in the Supreme Court to preserve his right to seek a reduction in his sentence after the effective date of SB 136.
The Supreme Court granted Lopez's petition for review on January 2, 2020, but deferred further action pending its decision in People v. McKenzie, S251333, which presented the question when is a judgment in a criminal case final for purposes ofapplying a later change in the law if the defendant was granted probation and imposition of sentence was suspended. The Court decided People v. McKenzie on February 27, 2020 (People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie)), and on May 27, 2020 transferred Lopez's case to us with directions to vacate our prior decision, which we do now, and to reconsider the cause in light of McKenzie and SB 136's amendment to section 667.5, subdivision (b).
In supplemental briefing Lopez argues SB 136 applies to any case in which the judgment was not final on January 1, 2020, and, under McKenzie, supra, 9 Cal.5th 940, the judgment in his case was not final before the previously suspended jail sentence was imposed and the appeal from revocation of his probation was resolved. The Attorney General agrees and additionally agrees that, because the previously suspended sentence was the maximum possible county jail term the trial court could have imposed, this court may strike the enhancements without remanding for a new sentencing hearing. Accordingly, we restate our prior opinion affirming the revocation of Lopez's probation, strike the three one-year prior prison or jail term enhancements imposed by the trial court, and again order the matter remanded to give Lopez the opportunity to request a hearing to present evidence demonstrating his inability to pay the applicable fines, fees and assessments.
On August 24, 2016 Lopez was charged in a felony complaint in Los Angeles Superior Court Case No. LA084142 with driving or taking a vehicle without consent after a prior conviction for the same offense. (Veh. Code, § 10851; Pen. Code,§ 666.5.) The complaint specially alleged Lopez had served five prior separate prison or jail terms for felonies within the meaning of section Penal Code 667.5, subdivision (b).
On October 5, 2016 Lopez was charged in a felony complaint in Case No. LA084433 with receiving a stolen motor vehicle after a prior conviction for violating Vehicle Code section 10851, subdivision (a). (Pen. Code, §§ 496d, subd. (a), 666.5.) The complaint specially alleged Lopez had served four prior separate prison or jail terms for felonies within the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to a negotiated agreement, on November 28, 2016 Lopez pleaded no contest to the charges in both cases and admitted three of the prior prison or jail terms specially alleged in Case No. LA084142 and one of the prior prison or jail terms specially alleged in Case No. LA084433.
On December 12, 2016 the trial court sentenced Lopez to an aggregate term of eight years in county jail: the upper term of four years for driving or taking a vehicle without consent after a prior conviction and one year (one-third the middle term) for receiving a stolen motor vehicle after a prior conviction, plus one year for each of the three prior prison or jail terms admitted in Case No. LA084142. The court suspended execution of the sentence and placed Lopez on formal probation for a period of five years.
Among the conditions of probation imposed by the court, Lopez was ordered to complete a one-year residential drug treatment program and to obey all laws and orders of the court and all rules and regulations of the probation department. Lopez was conditionally released to a representative of the drug treatment program.
On July 10, 2017 Lopez appeared in court and admitted to being terminated from his residential treatment program and thus violating a condition of his probation. The court reinstated probation on the same terms and ordered Lopez to continue residential treatment at a different facility.
On August 1, 2017 Lopez's probation was preliminarily revoked based on a recent arrest.2 At an August 31, 2017 probation revocation hearing Lopez admitted violating the conditions of his probation. The court revoked and reinstated probation on the same terms, but with the additional conditions in Case No. LA084433 that Lopez serve 32 days in county jail and complete 52 domestic violence counseling classes. In both cases Lopez was ordered to complete 180 days in a residential drug treatment program.
On January 2, 2018 the trial court held a progress report hearing in Case No. LA084433. The court read and considered a letter from the drug treatment facility stating Lopez had been terminated from the residential program.3 The court ordered Lopez to enroll at a new treatment facility by January 5, 2018 orto appear in court on that date if not yet enrolled. Lopez did not enroll in a new program by January 5 and failed to appear in court as ordered. The court preliminarily revoked Lopez's probation and issued a bench warrant for his arrest but held the execution of the warrant until January 11, 2018 due to potential confusion regarding the timing of the ordered appearance. Lopez again failed to appear on January 11, 2018, and the court ordered execution of the bench warrant. On March 20, 2018 Lopez was arrested following a domestic violence incident and taken into custody.
A probation violation hearing was held on April 17, 2018. Lopez's wife and the arresting police officer testified regarding the March 20 domestic violence incident, after which the trial court found Lopez was not in violation of probation based on his arrest. The court then turned to the other alleged probation violations described in the probation report prepared for the hearing: Lopez had failed to appear at the January 5 and January 11, 2018 hearings, failed to re-enroll in a residential drug treatment program and failed to enroll in a domestic violence treatment program. During a colloquy with the court, Lopez explained he had left the drug treatment program to care for his son and admitted he had not completed the domestic violence treatment program.
At the hearing the court repeatedly referred to the probation report. While it was not formally marked as an exhibit and admitted into evidence, the court informed the parties multiple times that it had read and considered the report. The court also stated it would give Lopez an opportunity to present any evidence in his defense, including "disputing anything in the probation report." Lopez did not present any evidence, but hiscounsel stated Lopez regretted leaving the drug treatment program and was willing to re-enroll. The court responded, The court ordered execution of Lopez's previously suspended eight-year county jail sentence. The court also imposed the previously suspended fines, fees and assessments: a $40 court operations assessment (Pen. Code, § 1465.8); a $30 court facilities assessment (Gov. Code, § 70373)...
To continue reading
Request your trial