People v. Duran, B201100 (Cal. App. 6/20/2008)

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THE PEOPLE, Plaintiff and Respondent, v. EZEKIEL JOSE DURAN, Defendant and Appellant

B201100

Court of Appeal of California, Second Appellate District, Division Five

June 20, 2008

Not to be Published

Appeal from a judgment of the Superior Court of Los Angeles County, No. LA047957, Leslie A. Dunn, Judge. Affirmed as modified.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Ezekiel Jose Duran, appeals following his no contest plea to assault with a deadly weapon by means of force likely to produce great bodily injury and an ensuing order finding him in violation of a grant of probation. (Pen. Code,¹ § 245, subd. (a)(1).) We modify the judgment and affirm.

II. BACKGROUND

Defendant was arrested on January 10, 2005. He was charged in a two-count complaint with assault with a deadly weapon (a knife) by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and willful infliction of corporal injury upon a spouse. (§ 273.5, subd. (a).) The complaint further alleged personal deadly weapon use (§ 12022, subd. (b)(1)) and defendant had served two prior separate prison terms within the meaning of section 667.5, subdivision (b).

Defendant pled no contest to assault with a deadly weapon by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) He admitted he had previously been convicted of violating Health and Safety Code section 11350, subdivision (a) on August 28, 1998. He was sentenced on September 6, 2005, to "the high term of three years" in state prison, enhanced by one year by reason of one prior prison term. Sentence was suspended and defendant was placed on three years' probation. He was ordered to serve 300 days in the county jail, received credit for 300 days,² and ordered to pay a: $200 restitution fine (§ 1202.4, subd. (b)); $200 parole revocation restitution fine (§ 1202.45); and $20 court security fee. (§ 1465.8.) The trial court further ordered, "You are also ordered to cooperate with the probation officer in a plan for substance abuse counseling, anger management and a 52-week domestic violence program."

On March 23, 2006, defendant was terminated from a domestic violence and anger management program due to excessive absences. He had not completed any classes. On April 17, 2006, defendant enrolled in a second domestic violence program. He was terminated on June 22, 2006, for erratic attendance. He had attended five sessions. But defendant also missed five sessions. He had last attended a session on June 5, 2006. In addition, defendant's deputy probation officer, Marilyn R. Ealy, reported he had not paid all the court ordered fines. Further, a woman who had dated defendant said he had been abusive and had threatened her.

On July 17, 2006, defendant's probation was revoked and he was remanded to custody. At a February 7, 2007 probation revocation hearing, defendant described the policy regarding absences in the domestic violence program in which he was enrolled. The policy in the program described by defendant was that a person would be terminated after more than three unexcused absences. Defendant further testified two of his five absences from the domestic violence program were excusable. Defendant denied having threatened his ex-girlfriend. Defendant's ex-girlfriend threatened him when he said he could not afford to pay her telephone bill. Defendant testified, "She threatened to call my probation officer." At the conclusion of the hearing, defendant's probation was revoked and the previously suspended sentence was imposed. Defendant received 608 days of custody credit.

III. DISCUSSION

A. Initially Filed Briefs

We appointed counsel to represented defendant on appeal. Counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On April 1, 2008, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished us to consider. Defendant filed a letter brief on April 17, 2008. He contends he did not violate his probation. Defendant asserts the woman he had been dating falsely claimed he had threatened her after she demanded money from him. Defendant further argues his absences from the domestic violence program were excusable and the evidence before the trial court so demonstrated. Those contentions are without merit. The prosecutor had the burden of proving by a preponderance of the evidence defendant violated a probation condition. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Abrams (2007) 158 Cal.App.4th 396, 400.) We review the trial court's finding defendant violated a probation condition for substantial evidence. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161-1162.) There was substantial evidence defendant had failed to comply with the probation requirement he attend a domestic violence program. Additionally, the trial court was not obligated to accept defendant's explanation of the events involving his ex-girlfriend. We must accept the trial court's credibility determinations. (People v. Zamudio (2008) 43 Cal.4th 327, 342; People v. Stansbury (1995) 9 Cal.4th 824, 831.)

B. The Upper Versus The Mid Term

We asked the parties to brief the question whether the matter must be remanded for resentencing. Immediately prior to defendant's plea, defense counsel advised the trial court as follows: "[Defendant] is going to enter a plea of no contest to count 1. He is going to admit to one of the 667(b)(1) [sic] priors. He is going to receive a sentence of four years in state prison. Imposition of sentence is suspended . . . . [¶]. . . [A]nd [he will] be ordered to do a one-year domestic violence program." The trial judge orally sentenced defendant as follows, "[T]he defendant is ordered to serve the high term of three years, plus one year pursuant to Penal Code section 667(b)(1) [sic] for a total of four years state prison suspended." The minute order states, "Court selects the upper term of 4 years as to count 01." However, the upper term for a violation of section 245, subdivision (a)(1) is 4 years. The midterm is 3 years. (§ 245, subd. (a)(1).) The abstract of judgment reflects a total sentence of 4 years (3 years plus 1 year pursuant to section 667.5, subdivision (b)). The trial judge orally sentenced defendant to, "[T]he high term of 3 years." Normally, the oral pronouncement of judgment controls over the clerk's minutes or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14.) We conclude there is no need to remand for resentencing. There is no reasonable probability of a different result at a resentencing hearing. (People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684-1685; People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638.) The trial court simply misspoke. The plea agreement was for a total of 4 years—the midterm of 3 years for the substantive offense enhanced by 1 year for the prior prison term. Defendant was so sentenced.

C. The Prior Prison Term Enhancement

We asked the parties to brief the question whether the section 667.5, subdivision (b) enhancement was properly imposed where defendant admitted only that he had previously been convicted of violating Health and Safety Code section 11350, subdivision (a). Section 667.5, subdivision (b) states, "[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; . . . ." (Italics added.) The following transpired in the trial court: "The Court: And do you admit that you were previously convicted of violating Health and Safety Code section 11350 in case number NA037605 on August 28th, 1998? [¶] The Defendant: Yes." The separate prison term enhancement was specifically charged in the complaint. As a result, the prior conviction admission admits the separate prison term as charged. (People v. Cardenas (1987) 192 Cal.App.3d 51, 61; People v. Welge (1980) 101 Cal.App.3d 616, 623-624; see People v. James (1978) 88 Cal.App.3d 150, 161-162.)

D. Custody Credit

We asked the parties to brief the question whether defendant received insufficient custody credit. He served 240 days in custody from January 10 to September 6, 2005. He was ordered to serve 300 days in the county jail, but was given credit for 300 days. In addition, he was in custody for 206 days from July 17, 2006, to February 7, 2007. He received credit for only 608 days. However, he was entitled to credit for 446 days in actual custody and 222 days of conduct credit for a total of 668 days. (§ 4019, subd. (f); In...