People v. Clemente

1

THE PEOPLE, Plaintiff and Respondent, v. OSCAR CLEMENTE, JR., Defendant and Appellant.

D079302

California Court of Appeals, Fourth District, First Division

August 5, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Imperial County No JCF000622 Poli Flores, Jr., Judge. Affirmed.

Shay Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

IRION J.

Oscar Clemente, Jr., appeals the judgment sentencing him to prison after the trial court found he violated the terms and conditions of probation he had been granted as part of a plea bargain. He contends the evidence was insufficient to establish the violations and remand for resentencing is required based on recent legislation limiting the court's authority to impose an upper-term prison sentence. We reject these contentions and affirm the judgment.

I. BACKGROUND

A. Grant of Probation

Clemente pled no contest to infliction of corporal injury on a cohabitant with a prior conviction within seven years. (Pen. Code, § 273.5, subd. (f)(1).) On June 4, 2018, the trial court suspended imposition of sentence and placed Clemente on formal probation for three years. The terms and conditions of probation included requirements, among others, that Clemente: (1) complete 150 hours of community service as directed by the Imperial County Probation Department (the Department); (2) participate in cognitive and behavioral counseling and educational programming as directed by the Department; (3) complete a 52-week certified anger management course as directed by the Department; (4) abstain from possession or use of alcohol; (5) obey all laws; (6) report any arrests to his probation officer within 48 hours; and (7) not drive a motor vehicle with any detectable amount of alcohol in his system.

B. Revocation of Probation

On April 5, 2021, the Department filed a petition for revocation of probation. (Pen. Code, § 1203.2, subd. (b)(1).) The Department alleged Clemente violated the probation condition requiring him to obey all laws when, on June 12, 2020, he committed a hit-and-run resulting in property damage (Veh. Code, § 20002, subd. (a)) and unlawfully operated a motor vehicle without an ignition interlock device (id., § 23247, subd. (e)).^[1] The Department alleged two other violations arising out of the hit-and-run incident: (1) Clemente failed to report the incident to the probation officer within 48 hours, in violation of the requirement that he report any arrests within that period; and (2) he smelled of alcohol and had a measurable amount of alcohol in his system, in violation of the requirement that he abstain from using alcohol. The Department further alleged Clemente violated the probation terms and conditions requiring him to participate in cognitive and behavioral counseling and educational programming, to complete a 52-week course on anger management, and to perform 150 hours of community service. The Department asked the trial court to revoke probation and to sentence Clemente to prison for "the Upper Term" of four years. (Bolding omitted.)

At the arraignment on the petition, the trial court summarily revoked probation and set the matter for a formal revocation hearing.

At the hearing, California Highway Patrol (CHP) Officer Joel Hilfiker testified about the June 12, 2020 traffic incident involving Clemente. On that date, Hilfiker arrived at the scene of a reported collision and found a pickup truck with major damage and a power pole sheared off at its base. The power pole belonged to the county irrigation district. The driver of the truck was not there. About two hours after arriving at the scene, Hilfiker received a telephone call from a CHP dispatcher that the driver might be at a nearby business establishment. Hilfiker went to the establishment and found Clemente, who said that he saw an object in the road as he was driving, unsuccessfully tried to avoid collision with the object, lost control of the truck, and crashed into the power pole. Clemente said he left the scene of the collision because he "was trying to get help" and "was scared of law enforcement." Hilfiker noticed a "mild odor of an alcoholic beverage" emanating from Clemente and asked whether he had been drinking.

Clemente responded, "No." Hilfiker then administered a preliminary alcohol screening test, which reported a blood alcohol content greater than 0.01 percent. Hilfiker ran Clemente's record with the Department of Motor Vehicles and discovered that Clemente was required to have an ignition interlock device in his vehicle. The truck that Clemente had crashed into the power pole belonged to his father and had no such device. Hilfiker did not issue Clemente a citation at that time and allowed him to leave with his father, who had arrived to pick him up.

Another witness at the hearing was Carlos Contreras, an employee of GEO Reentry Services (GEO), which provides courses on substance abuse, anger management, parenting, and cognitive behavior to individuals on probation. Contreras testified that Clemente had been referred to GEO to complete substance abuse group sessions on September 11, 2020, but "was dropped as an abscond" after he failed to attend a session for more than 10 consecutive days. On March 3, 2021, GEO notified Clemente's probation officer that Clemente had been terminated from the program. To Contreras's knowledge, Clemente did not try to reenroll in the program.

Clemente's probation officer, Julio Coronel, also testified at the revocation hearing. Coronel testified he had received a letter from the provider of the anger management classes that Clemente had been terminated for nonattendance. Coronel received a similar letter from GEO about Clemente's termination from the substance abuse classes. Coronel had no record that Clemente completed any hours of community service. Clemente did not tell Coronel that he (Clemente) had reenrolled in anger management or substance abuse classes, but a letter from the provider of the anger management classes stated he had reenrolled. Coronel testified that probationers must report any contact with law enforcement, not just arrests, to their probation officers, but Clemente never told him about the June 12, 2020 traffic incident.

After hearing argument from counsel, the trial court announced its findings. The court stated that ever since Clemente was granted probation, he had "done absolutely nothing to comply with the terms of probation." The court noted the hit-and-run driving charge was still pending and found by a preponderance of the evidence that Clemente committed the offense, which the court described as "just one of a number of violations." The trial court further found Clemente "made no effort to comply with the terms of the GEO program, with no excuse." The trial court stated that although Clemente had three years to complete the requirements, he did not complete the substance abuse or anger management classes and did no community service. The court therefore found Clemente violated the terms and conditions of probation and set the matter for sentencing.

C. Sentencing Hearing

At the sentencing hearing, Clemente's counsel offered documents that purportedly showed Clemente had completed his 150 hours of community service. The probation officer told the trial court that Clemente had not notified the Department about the community service, and one of the organizations at which he served was not on the Department's list of approved organizations. Clemente admitted he had neither notified his probation officer about the community service at the unapproved organization nor provided the officer any documentation of such service.

Clemente submitted character reference letters from an employer and a school superintendent. He and his parents made statements on his behalf, and his counsel urged the court to reinstate probation.

The prosecutor disputed the truth of the documents Clemente offered to prove performance of the required community service. The prosecutor also briefly discussed Clemente's multiple violations of the terms and conditions of probation, which the prosecutor argued showed Clemente's unsuitability for continued probation.

The trial court considered the character reference letters and the statements of Clemente and his parents, and reviewed his criminal record from the probation officer's report, which included four felonies and 10 misdemeanors. The court stated:

"The record shows a frequency and pattern of criminal conduct that's gone unabated. His prior performance has been poor, given by the number of violations.... [I]n the three [prior] felony cases where he was placed on probation, his performance on probation was unsatisfactory. He had repeated violations of probation even earlier .... It doesn't appear that he's willing to comply with the terms of probation, especially with the domestic violence, where he knows clearly what he has to do. There's no indication that he has any remorse; reviewing the initial report from this case, when he was sentenced originally, in June of 2018 he told the probation officer he did nothing wrong. So all the factors of the defendant militate against reinstatement on probation. His record is one of both violence, domestic violence, and alcohol.

And the consistent pattern in his record is that he has not complied with probation and that he's picking up new offenses over and over and over again. And again, this is the fourth felony conviction. In spite of, I'm sure, him being...