People v. Ochoa

• Decision Date: 02 July 2014
• Docket Number: B244844
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JESUS VAZQUEZ OCHOA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JESUS VAZQUEZ OCHOA, Defendant and Appellant.

B244844

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Filed: July 2, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. BA380304)

APPEAL from an order of the Superior Court of Los Angeles County, Craig Richman, Judge. Reversed in part and affirmed in part.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jesus Vazquez Ochoa contends the trial court erred by summarily revoking his probation absent a showing of willful violation, and the record must be corrected to accurately reflect the suspended sentence imposed. We agree with both contentions. We therefore reverse the court's order summarily revoking probation and deem the eight-year four-month sentence noted in the court's minute order to be correct.

FACTUAL AND PROCEDURAL BACKGROUND

1. Plea and grant of probation.

A complaint filed on January 24, 2011 charged Ochoa with two counts of the manufacture or sale of a counterfeit mark (Pen. Code, § 350, subd. (a)(2),¹ and seven counts of manufacture or sale of a counterfeit mark with a prior (§ 350, subds. (a)(1), (b)). According to a probation report, police serving search warrants on January 13, 2011, discovered counterfeit Chanel, Louis Vuitton, Burberry, Coach, Gucci, Juicy Couture, Fendi, and Jimmy Choo handbags, wallets, and shoes at two businesses connected to Ochoa.

In a negotiated disposition, on February 10, 2011 Ochoa pleaded guilty as charged. In exchange, the trial court imposed a suspended sentence and placed Ochoa on five years formal probation. It imposed a variety of probation conditions, including that Ochoa: (1) pay a restitution fine; (2) "maintain residence as approved by the probation officer"; (3) "cooperate with the probation officer in a plan for probation;" (4) "obey all rules and regulations of the probation department;" and (5) "[k]eep [the] probation officer advised of your residence at all times." The court's minute order also stated: "If you leave the country, do not reenter the United States illegally. If you do return, report to the probation officer within 48 Hours and present documentation which proves you are in the United States legally." (Underlining in original.)

2. Revocation of probation and denial of coram nobis petition.

In October 2012, the probation department requested Ochoa's probation be modified to a "grant without supervision" in light of the fact he had been "deported to Mexico" on August 24, 2012. The probation report explained: "Defendant's wife called the probation department to report that defendant had been deported and she was the one making the payments towards the financial obligation. On 09/18/2012 a call was made to Immigration Customs and Enforcement . . . [and] it was verified that the [immigration] court granted voluntary departure on 08/24/2012." The report noted that Ochoa had paid all but $16.70 on a $220 fine ordered in the case.

On October 24, 2012, Ochoa's counsel appeared before the court regarding the probation department's request. Counsel stated that Ochoa had "been apparently deported," and observed that the probation department was requesting that his probation be converted to nonsupervised. The trial court stated: "I have received notification from the probation department that Mr. Ochoa . . . was deported to Mexico on August 24th, 2012. Based upon the report, I will revoke probation and issue a bench warrant."

The next day, Ochoa's counsel filed a petition for a writ of error coram nobis, seeking reconsideration of the probation revocation order. Ochoa argued that revocation was improper because neither the probation department nor the district attorney had moved to revoke probation, and in any event, there was no evidence establishing Ochoa had willfully violated the terms of his probation. The trial court denied the motion, explaining, "[defense counsel] has now filed a 30-page writ of error . . . saying that . . . the probation department, who I could care less what they recommend, did not recommend his probation be revoked. They actually recommend[ed] it be converted to summary probation. And then the [d]istrict [a]ttorney didn't ask that Mr. Ochoa's probation be revoked. And then it says, 'nor [did] the court move[ ] to revoke Mr. Ochoa's probation.' I thought I did move to revoke his probation. I did in fact revoke his probation." The court continued: "I would agree with you to a certain extent that Mr. Ochoa, by being deported, is not in violation of his probation, and if Mr. Ochoa notified probation within 48 hours of his deportation, letting probation know where hewas in Mexico, which is a condition of his probation, and I assume he did not do that, and then if Mr. Ochoa does in fact return or when he returns to the United States—not if—he reports to probation within 72 hours, he also would not be in violation of his probation. Then probation would be reinstated nunc pro tunc. But I am well within the law at this point in time to revoke his probation and issue a no bail bench warrant. [¶] Your motion is denied." (Italics added.) When defense counsel asked if he could be heard, the trial court replied, "No."

Ochoa appeals.²

DISCUSSION

1. Revocation of probation.

A court may summarily revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation . . . officer or otherwise that the person has violated any of the conditions of his or her [probation] . . . ." (§§ 1203.2, subd. (a); see 1203.3, subd. (a); People v. Leiva (2013) 56 Cal.4th 498, 504; People v. Galvan (2007) 155 Cal.App.4th 978, 981; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) We apply the substantial evidence standard when reviewing a trial court's finding of a probation violation. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) The facts supporting revocation of probation may be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Galvan, supra, at p. 982; People v. Kelly (2007) 154 Cal.App.4th 961, 965.) The evidence must support a conclusion that the probationer's conduct constituted a willful violation of the terms and conditions of probation. (People v. Moore (2012) 211 Cal.App.4th 1179, 1186 ["a trial court may not revoke probation unless the defendant willfully violated the terms and conditions of probation"]; People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan, supra, at p. 982; People v. Zaring (1992)8 Cal.App.4th 362, 375-379; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1129; In re Victor L. (2010) 182 Cal.App.4th 902, 913.) "Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error." (People v. Cervantes, supra, at p. 295.) Trial courts have great discretion in deciding whether or not to revoke probation. (People v. Kelly, supra, at p. 965; People v. Galvan, supra, at pp. 981-982.) Absent abuse of that discretion, we will not disturb the trial court's decision. (People v. Kelly, supra, at p. 965.)

a. Dismissal of Ochoa's appeal.

The Attorney General first argues that Ochoa's appeal should be dismissed because he is no longer within the court's control, given the fact he has been deported. This argument is meritless.

" 'That the court . . . has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.' [Citation]. The fugitive disentitlement doctrine dates back to 1880 in California with People v. Redinger (1880) 55 Cal. 290 . . . , in which the Supreme Court dismissed an escaped defendant's appeal because '[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be made effective.' " (Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531; People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 896; People v. Kubby (2002) 97 Cal.App.4th 619, 622-623.)

However, the record here does not establish that Ochoa is a fugitive from justice. As explained in People v. Puluc-Sique, supra, 182 Cal.App.4th 894: "[T]he People ask us to extend the appellate disentitlement doctrine to a defendant who has been deported from this country by United States Immigration and Customs Enforcement (ICE). . . . [A]bsent additional circumstances not presented here, a defendant who has been deported does not stand in the same shoes as one who has voluntarily placed himself beyond the court's control. We therefore deny the motion to dismiss the appeal." (Id. at p. 896.)"Defendant is not a fugitive from justice, but was deported from the country by ICE. Though deportation might interfere with one's ability to comply with the conditions of probation, a defendant who has been involuntarily deported has not willfully flouted the court's orders in the same sense as one who has escaped custody or fled from the authorities. Consideration of an appeal by such a defendant does not threaten the integrity of the judicial system. Appellate disentitlement is, fundamentally, a doctrine based on forfeiture: a defendant who escapes or otherwise flees...