Ruiz v. The Superior Court
| Decision Date | 02 February 2023 |
| Docket Number | B321114 |
| Parties | ANTHONY RUIZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate No. BA483528. Mary Lou Villar, Judge. Petition denied.
Ricardo D. Garcia, Public Defender, Albert J. Menaster, Jacob Stromin, Julianne Prescop and Nick Stewart-Oaten, Deputy Public Defenders for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, David Glassman and Steven E Mercer, Deputy Attorneys General for Real Party in Interest.
In October 2020, Anthony Ruiz (Ruiz) pleaded no contest to two counts of elder abuse. (Pen. Code, § 368, subd. (b)(1).)[1]The court sentenced him to three years in prison, suspended the sentence, and placed him on probation for five years.
In May 2022, after the Legislature amended section 1203.1 to limit, generally, felony probation terms to two years, Ruiz filed a motion to amend the probation order to shorten the probation period to two years. The trial court denied the motion, and Ruiz sought review before us by petition for writ of mandate. We issued an order to show cause and have received briefing and heard argument. For the reasons given below, we deny the petition.
In December 2019, the District Attorney charged Ruiz with one count of assault with a deadly weapon (count 1; § 245, subd. (a)(1)), two counts of elder abuse against Carmen R. (counts 2 and 4; § 368, subd. (b)(1)), and two counts of making a criminal threat (counts 3 and 5; § 422, subd. (a)).[2] On October 8, 2020, pursuant to a plea agreement, Ruiz pleaded no contest to two counts of elder abuse. The court found a factual basis for the plea based on counsels' stipulation and its "review of the probation officer's report." The probation report states that the victim, Carmen R., "is the defendant's grandmother."
The court accepted the plea and found Ruiz guilty of two counts of elder or dependent abuse (counts 2 and 4). In accordance with the plea agreement, the court dismissed the remaining counts. The court sentenced Ruiz to three years in prison on count 2, and 18 months on count 4, to run concurrent to the sentence on count 2.[3] The court then suspended execution of the sentence and placed him on probation for five years. The prosecutor advised Ruiz that if he violated the terms and conditions of probation, he "could be sent to prison for an amount of time up to and including [the] maximum sentence" of five years.[4]
The terms and conditions of Ruiz's probation include, among others, that Ruiz serve 157 days in jail (and he was credited the same number of days), and that he participates in a one-year "residential treatment program," including an anger management program. The court also issued a protective order pursuant to section 136.2, subdivision (i)(1), prohibiting Ruiz from coming within 100 yards of, or having any in-person contact with, Carmen R. and Antonio R.[5] The protective order also requires that he "not harass, strike, threaten, assault . . ., follow, stalk, molest, . . . disturb the peace, keep under surveillance, or block movements of" Carmen R. or Antonio R.
The court ordered Ruiz to pay a restitution fine (§ 1202.4, subd. (b)), a probation revocation restitution fine (§ 1202.44), and certain assessments (§ 1465.8, subd. (a)(1); Gov. Code, § 70373).
The court held these fines and assessments "in abeyance, to be waived at completion" of probation.
In 2020, the Legislature enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill No. 1950), which amended section 1203.1 to shorten the maximum probation term for most felonies to two years. (§ 1203.1, subd. (a); Stats. 2020, ch. 328, § 2.)[6] The Legislature, however, specified certain exceptions from the two-year maximum, including "an offense that includes specific probation lengths within its provisions." (Former § 1203.1, subd. (m)(1); Stats. 2020, ch. 328, § 2.)[7] The amendment became effective on January 1, 2021.
In May 2022-approximately one year and seven months after his five-year probationary period began-Ruiz filed what he described as a motion Ruiz asserted that the ameliorative changes made by Assembly Bill No. 1950 apply retroactively to him and that he was not convicted of an offense that" 'includes specific probation lengths within its provisions.'" He argued that he is therefore entitled to a reduction of his probationary term to two years.
Ruiz acknowledged in his motion that "section 1203.097 does contain a longer probation term." Under section 1203.097, "[i]f a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include" certain terms, including a "minimum period of probation of 36 months." (§ 1203.097, subd. (a)(1).) Family Code section 6211 defines domestic violence as "abuse perpetrated against" certain classes of persons, including any "person related by consanguinity or affinity within the second degree." (Fam. Code, § 6211, subd. (f).)
Ruiz argued that section 1203.097 did not apply to him because he "was not charged with a violation of . . . section 1203.097, was not convicted [of] (and did not admit) a violation of section 1203.097, and was not sentenced pursuant to the terms of section 1203.097." Ruiz further argued that a "finding that [he] violated section 1203.097 can only be made by a jury, unless admitted by [Ruiz]."
The District Attorney opposed the motion. In his written opposition, the prosecutor argued that section 1203.097 applies in this case because the victim of Ruiz's crimes is Ruiz's "75-year-old grandmother"-a person related by consanguinity within the second degree-and thus a person defined in section 6211 of the Family Code. (See Prob. Code, § 13, subd. (b) [].) The court, rather than a jury, can make that finding, the prosecutor explained, because probation "is not an act of punishment" that must be supported by jury findings, "but instead an act of clemency on the part of the court." The prosecutor did not refer to or submit any evidence in support of the opposition.
On May 27, 2022, at the hearing on the motion, the prosecutor argued that maintaining the five-year probation term is "appropriate" because Ruiz's convictions arose from an incident in which Ruiz "point[ed] a firearm at his grandmother," and a grandmother is among the persons described in Family Code section 6211.
The prosecutor further informed the court that Ruiz "is asking [the] court" to permit him "to have contact with his grandparents again," and that "the grandmother" "is asking the court to modify the protective order so she can have contact with her grandson." Ruiz had recently fathered a child and, according to the prosecutor, the grandmother stated that she and her husband "would like to see their grandson as well as their great-grandson."
Ruiz's counsel neither conceded nor denied that Carmen R.-the victim of Ruiz's elder abuse crimes-is Ruiz's grandmother. Counsel argued that section 1203.097 did not apply because Ruiz "was not charged with . . . a [domestic violence] offense," he "did not admit the relationship, and he was not given any probationary terms under [section] 1203.097."
The court acknowledged that Ruiz's "plea was not under [section 1203.097]," but stated that it "recognize[d] the relationship [Ruiz has] with the grandmother," and denied the Ruiz's motion "given the familial relationship." The court then issued a modified protective order that allowed Ruiz to have "peaceful contact with [Carmen R. and Antonio R.] with a third party present."
Ruiz's counsel objected on hearsay grounds to the court's finding of a "familial basis" in denying the motion.
On June 23, 2022, Ruiz filed in this court a petition for writ of mandate directing the superior court "to set a new probation expiration date of October 7, 2022." He argues: (1) Under Assembly Bill No. 1950, his maximum period of probation is two years because he was not convicted of an offense that includes specific probation lengths within its provisions; (2) the court's finding that section 1203.097 applies based on the Ruiz's familial relationship with the victim could only be made by a jury; and (3) the court's finding that the victim of Ruiz's crimes is a person defined in section 6211 of the Family Code was based on inadmissible hearsay.[8]
On October 20, 2022, we issued an order to show cause why a peremptory writ of mandate should not issue.
We have received and considered the Attorney General's return in opposition to the writ, Ruiz's reply, and supplemental briefing.
Subdivision (a) of section 1203.1, Assembly Bill No. 1950 provides in part: "The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and conditions as it shall determine." Subdivision (l) of that section, however, provides, as is relevant here: "The two-year probation limit in subdivision (a) shall not apply to: [¶] . . . an...
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