People v. Russell
| Decision Date | 29 July 2011 |
| Docket Number | B225572 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. LAMONT RUSSELL, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Modified and, as so modified, affirmed.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
Following his July 2008 plea of no contest to petty theft with a prior, defendant and appellant Lamont Russell was granted probation. Probation was terminated in June 2010, due to Russell's failure to report to his probation officer for several months. The trial court sentenced him to the high term of three years in prison. Russell contends: (1) there was insufficient evidence to support the trial court's finding he willfully deserted his probation; (2) the trial court violated California Rules of Court, rule 4.435 when it based his upper term sentence on events occurring subsequent to the original grant of probation; (3) the trial court failed to consider mitigating factors when imposing sentence; and (4) the court erred by imposing "duplicate and unauthorized" fines and fees.1 We modify the judgment in regard to the fines and fees imposed. In all other respects, we affirm.
On the afternoon of June 25, 2008, Long Beach Police Officer Garey Bruyere and his partner were on patrol when they observed Russell running down the street with a case of Budweiser beer. A Budweiser delivery truck was parked nearby at a liquor store. The officers followed Russell. When he stopped and set the beer down, they detained him. He volunteered, " 'I just did the stupidest thing.' " He stated that he had gone to get his wife a beer, saw the Budweiser truck, and took a case off the truck. Shortly thereafter, the driver of the truck approached the officers, looking for his missing case of beer. He explained he had stacked the cases next to his truck, and one was missing.
The probation report prepared for a July 2008 early disposition conference noted that Russell had completed eight prior state prison commitments, seven involving theft-related crimes and one involving a non-violent escape from prison. Due to his prior felonies, Russell was statutorily ineligible for probation absent a finding his was an unusual case. (Pen. Code, § 1203, subd. (e)(4).)3 The probation officer opined: "It would seem difficult to find this matter 'unusual[,]' given the fact the defendant has been sentenced to state prison on seven separate felony convictions since 1987." His most recent state prison sentence had been for 40 months, in 1998. He had also suffered multiple prior parole violations. The probation officer observed: "It appears while the defendant is on probation or parole, he continues to involve himself in theft-related crimes in the community and is always ultimately sent back to state prison for his behavior." The probation officer also expressed concern that Russell had "sustained several recent arrests involving spousal assault behavior." The report recommended Russell be sentenced to the maximum time in jail.
At the preliminary hearing, the trial court concluded Russell's case was unusual because his last prior felony conviction had occurred approximately 10 years previously. Russell pleaded no contest to petty theft with a prior (§ 666) and admitted suffering eight prior felony convictions. The court placed Russell on formal probation for three years. Among other things, as conditions of probation Russell was required to serve 30 days in jail, with credit for 30 days served; complete 60 days of Department of Transportation (Caltrans) service; obey all "rules and regulations of the probation officer"; and "keep the probation officer advised of his work and home telephone numbers at all times. The trial court admonished, "I'm hopeful, Sir, that you will not do anything like this again because, of course, if you do, you're not only looking to go back to prison, it's liable to be longer than 16 months."
The trial court imposed a $200 restitution fine; a $200 stayed probation revocation restitution fine; a $20 court security fee; a $10 crime prevention fine; attorney fees in anamount to be determined by a financial evaluator; and the cost of probation services as determined by the probation officer.
On April 20, 2009, a motion to revoke probation was filed in lieu of commencement of a new misdemeanor case. A probation report prepared in May 2009 stated the following. On April 17, 2009, Long Beach Police Officers responded to a spousal abuse call, in which the caller reported that Russell had his girlfriend or wife in a headlock. Officers discovered Russell and the woman walking through a fast food restaurant parking lot, arguing loudly. The officers detained the couple. Russell falsely identified himself with his brother's name and birth date. When his true identity was discovered, he told officers he had lied because he did not wish to go to jail again.
Russell had reported to the probation department once a month as instructed with the exception of an April 9, 2009 appointment, which he missed. Neither the Caltrans office where Russell claimed to have registered, nor the Long Beach Caltrans office, had any record of his enrollment in the program. He owed $3,609 in fees and fines, but had made no payments. The probation report concluded: Accordingly, the report recommended probation be revoked and sentence be pronounced.
On June 23, 2009, the trial court held a probation revocation hearing. It found Russell in violation of probation, but reinstated probation on the same terms and conditions with modifications that he serve jail time and enroll in Caltrans within 48 hours.
On February 23, 2010, a probation report was filed entitled, "Regarding Desertion of Probationer." The report explained: The probation officer had been unable to locate him since that time. He had made no payments toward his fees and fines of $3,609. The report also noted that a warrant had been issued for Russell on December 26, 2009 for inflicting corporal injury on a spouse or cohabitant, and recommended Russell's probation be revoked. A bench warrant was issued on February 23, 2010. By April 28, 2010, Russell was in custody.
On June 29, 2010, the trial court held another probation revocation hearing, at which the following evidence was adduced. The People's evidence consisted of a supplemental probation report, admitted into evidence without objection, filed on the date of the hearing. That report stated, "[p]robation records indicate that defendant deserted his probation and the last time he reported to his probation officer was on 8/18/09." He owed $3,609 to the probation department. He had made no payments and his account was delinquent. He had sustained four new arrests since probation was granted. He "treat[ed] his probation as a right and not the privilege that probation is meant to be . . . ." Nonetheless, the probation officer recommended that Russell be admonished and probation be reinstated, given that he had sufficient time left on his probation period to comply with his conditions of probation.
Lisa Rocco, Russell's probation officer, testified that on September 29, 2009, Russell's wife telephoned her to report that Russell was in the hospital and had suffered injuries to his back and hand. Russell did not thereafter call and tell her he was still injured; Rocco did not recall ever receiving such a call from him, nor did her records indicate such a call had been received. She did not recall talking to anyone about his case after September 29. She never had a conversation with Russell regarding his injury in which she offered to provide him with home visits. Russell's wife was supposed to provide Rocco with documentation regarding the injury, but she was unable to take time away from work and did not do so.
Russell's wife, Tanisha Nicole Smith, testified that she had telephoned Rocco about Russell's injury in September 2009. Smith told Rocco that Russell could not report to probation because of his back injury. Due to the injury, he could "hardly walk." Hewas "disabled for a few months." At the time of the June 29, 2010 hearing, he had "just now started getting his back right and walking two months ago." Smith had been supposed to bring documentation to Rocco, but had begun a new job and was unable to do so. Smith brought the documentation of Russell's injury to the hearing. She did not know whether Russell was supposed to call in to his probation officer every month. On cross-examination, Smith testified that on December 26, 2009, Russell had been taken into custody after someone reported that...
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