People v. Dauterman

324 Cal.Rptr.3d 839

The PEOPLE, Plaintiff and Respondent,

v.Gregory Allen DAUTERMAN, Defendant and Appellant.

C099223

Court of Appeal, Third District.

Filed August 23, 2024

APPEAL from a judgment of the Superior Court of Tehama County, Jonathan W. Skillman, Judge. Affirmed with directions. (Super. Ct. No. 20CR000938)

Aurora Elizabeth Bewicke, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Jessica Trieu-Simerly, Deputy Attorneys General, for Plaintiff and Respondent.

BOULWARE EURIE, J.

Under a negotiated agreement, defendant Gregory Allen Dauterman pled no contest to making criminal threats and admitted he previously committed a serious felony. Pursuant to this agreement, the trial court imposed and suspended an eight-year prison sentence, placing Dauterman on a two-year term of formal probation. In February 2021, the trial court clarified: "That will be two years from today’s date." "The credits - it will be [credit for time served] on the jail time. Credits are a … total of 228." Nearly two years later, the trial court summarily revoked probation after the probation department filed a petition in January 2023. The petition alleged that Dauterman had violated the terms of his probation by failing to contact the probation department for three consecutive months. After Dauterman admitted to the probation violation at a subsequent hearing, the trial court terminated probation and ordered him to serve the previously suspended eight-year sentence.

On appeal, Dauterman contends the trial court lacked jurisdiction to revoke probation in 2023 because his two-year probationary term had ended as a matter of law in July 2022. According to Dauterman, when the trial court imposed the two-year probation term in February 2021 and credited him with 228 days for time served, those days should have reduced the probation period to 502 days. Dauterman also contends that, even if the trial court had jurisdiction to revoke probation in 2023, it abused its discretion by terminating probation rather than reinstating it. Additionally, Dauterman claims that trial counsel provided ineffective assistance and that the abstract of judgment should be corrected. We reject Dauterman’s first three claims, but agree the abstract of judgment requires correction.

BACKGROUND

Pursuant to a November 2020 negotiated resolution, Dauterman pled no contest to one count of making criminal threats (Pen. Code, § 422)¹ and admitted he previously committed a serious felony (§ 667, subd. (a)(1)) in exchange for (1) the prosecution’s dismissal of other allegations of criminal conduct, (2) a suspended eightyear term in prison, and (3) a period of probation under conditions to be set by the trial court, including credit for time served in county jail. Dauterman told the trial court he understood he faced eight years in state prison if he violated probation.

A January 2021 probation report recommended Dauterman be placed on probation "only because of the stipulated agreement." It also recommended numerous terms and conditions of probation, including that Dauterman (1) report to probation at least once a month or as otherwise directed by a probation officer, (2) pay a conviction assessment of $30 pursuant to section 70373 of the Government Code, and (3) be confined 228 days in county jail "with credit for the time heretofore served."

In a February 16, 2021 hearing, the parties and the trial court confirmed that due to the enactment of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950) (Stats. 2020, ch. 328, § 2), Dauterman’s period of felony probation would be two years, the new statutory maximum (§ 1203.1, subd. (a)), and the time Dauterman had already spent in county jail before that day would be credit for time served. Consistent with that discussion, the trial court placed Dauterman on formal felony probation for two years. "That will be two years from today’s date," the trial court said. The trial court continued: "The credits - it will be [credit for time served] on the jail time. Credits are 114 and 114 for a total of 228. [¶] It will be the aggravated term [of] … a total of eight suspended, execution suspended."

Defense counsel waived a formal reading of all the recommended terms and conditions of probation, and the trial court announced it would "adopt the remaining terms and conditions in their entirety as if read into the record and incorporated into the judgment and sentence." The trial court then spoke directly to Dauterman: "[S]o, you have eight years suspended. You have been in this situation before with respect to supervision, you know what you need to do." "Absolutely," Dauterman replied. "You most likely will be going back to state prison eight years. You know what you need do," the trial court warned. "Yeah. I don’t want that," Dauterman said.

In January 2023, the probation department filed a petition to revoke Dauterman’s probation, alleging he failed to contact the probation department in any manner since late September 2022. About two weeks later, after Dauterman was arrested, the trial court summarily revoked probation and ordered Dauterman released from custody on his own recognizance. In a hearing held in February 2023, Dauterman admitted the alleged probation violation and the trial court set for a later date the decision whether to reinstate or terminate Dauterman’s probation. As the hearing concluded, a probation officer told Dauterman to "[r]eport to probation now." On the heels of that comment, the trial court told Dauterman to "report to probation as soon as [his] case [was] done" that day. Dauterman remained released on his own recognizance.

An April 2023 probation report noted that although Dauterman initially complied with the terms of his probation, he later struggled to follow directives, reporting to probation "only … sporadically or after an appointment letter" was sent to him.

The report also indicated that Dauterman was sanctioned twice for failing to report as directed, but then failed to appear to complete the sanctions for those violations. He failed to contact the probation department in any manner from September 22, 2022, until his arrest on January 5, 2023.

A May 2023 probation report stated that Dauterman "failed to report to probation as directed following his court hearing" on May 1, 2023. At a hearing held on May 22, 2023, Dauterman asked the trial court to reinstate probation and the People asked the trial court to terminate probation and send Dauterman to prison. After hearing from counsel and indicating it had read the April and May 2023 probation reports, the trial court terminated probation and imposed the suspended eight-year prison sentence, explaining: Dauterman had absconded, and while he did report as directed after his January 2023 arrest, he did not report to probation on May 1, 2023, "which is significant." "He … was sanctioned two times for not reporting while he was on probation. He failed to report to do his sanction, which is also significant. [¶] If the defendant can’t show up while on probation and then he can[‘t] show up after the violation, the Court has no indication that he will continue to comply. It looks as though he will not." The trial court lifted and imposed the execution of the suspended eight-year prison sentence and stated Dauterman was entitled to 229 days of credit. Dauterman appealed.

DISCUSSION

I Probationary Term and Trial Court’s Jurisdiction

Dauterman contends the trial court’s January 2023 summary revocation of probation and May 2023 termination of probation must be reversed because his two- year probationary period terminated by operation of law in July 2022, at which point the trial court lost jurisdiction to revoke his probation. This is so, Dauterman contends, because when the trial court ordered him to "serve 228 days in county jail as a term of probation" (italics omitted) in February 2021, that time counted against his two years of probation, leaving him with "only … 502 days of his two-year term remaining." The trial court erred as a matter of law when it ordered the two-year period of probation to begin on that day in February 2021, Dauterman maintains, because this was an unauthorized probationary term of two years and 228 days.

A. Legal Background of the Merits

The basic premise that Dauterman asserts in this appeal is that his two-year term of probation should have been reduced by the number of days he spent, and received credit for, in the local jail prior to the date he was placed on probation by the trial court. As we shall explain, this assertion lacks merit.

1. Standard of Review and Appellant’s Burden

[1] We review de novo the pure questions of law presented here. (People v. Tua (2018) 18 Cal.App.5th 1136, 1140, 228 Cal. Rptr.3d 143.) A trial court’s judgment is ordinarily presumed to be correct, and it is the appellant’s burden to demonstrate, based on the appellate record and with meaningful legal analysis supported by citations to authority, that the trial court committed reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609, 234 Cal.Rptr.3d 831, 420 P.3d 746; In re S.C. (2006) 138 Cal.App.4th 396, 408, 41 Cal. Rptr.3d 453.)

2. Probation Generally and Section 1203.1

" ‘[P]robation’ means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." (§ 1203, subd. (a).) Section 1203.1, subdivision (a)(2) explicitly authorizes the imposition of county jail as a condition of a grant of probation. Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1 by reducing the maximum length of probation to two years for most felonies, including making criminal threats, Dauterman’s conviction here. (People v. Prudholme (2023) 14...