People v. Watson

THE PEOPLE, Plaintiff and Respondent, v. ROBBIE GENE WATSON, JR., Defendant and Appellant.

C077197

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)

April 7, 2021

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF13533 )

In September 2013, defendant Robbie Gene Watson, Jr., pursuant to a plea bargain, pleaded guilty to one count of inflicting corporal injury on his spouse. (Former Pen. Code,¹ § 273.5, subd. (e), now § 273.5, subd. (f).) As part of the bargain, the trial court released defendant on his own recognizance and suspended sentencing pursuant to aCruz² waiver. In January 2014, while on release, defendant attacked his spouse again, in violation of his Cruz waiver, which required, among other things, that he obey all laws and not revictimize his spouse. In June 2014, the trial court sentenced defendant for the September 2013 offense, to five years in prison and imposed fees and fines. A jury subsequently found defendant guilty of multiple charges for the January 2014 attack. During sentencing for the January 2014 offenses, the court reconsidered but left unchanged the sentence for the September 2013 offense. At that time, defendant was sentenced to an aggregate term of 19 years to life.

On appeal, defendant challenges the judgment and sentence for the September 2013 offense. He contends: (1) the trial court relied on an outdated probation report during sentencing for the September 2013 offense; (2) he received ineffective assistance of counsel both during the original sentencing hearing for the September 2013 offense and during the sentencing hearing for the January 2014 offenses when the court reconsidered the sentence for the September 2013 offense; (3) the trial court erroneously imposed fees that were not consistent with the parties' agreement; (4) the trial court failed to hold a hearing to determine whether he violated his Cruz waiver; and (5) when the trial court sentenced defendant to prison, it erroneously imposed a domestic violence fund fee applicable only when a defendant is sentenced to probation. In supplemental briefing, defendant requests that (6) we strike, pursuant to Senate Bill No.136 (S.B. 136), his section 667, subdivision (b) prior prison term enhancement which was charged and found true as part of his 2014 case, (7) remand to allow the trial court to consider mental health diversion under section 1001.36 and (8) strike all fees and fines until there is a showing of ability to pay.

We agree the $500 domestic violence fee must be stricken and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with infliction of corporal injury resulting in a traumatic condition upon his spouse (the victim) occurring on September 6, 2013, with a prior domestic violence conviction (count 1; former § 273.5, subd. (e)(1), now § 273.5, subd. (f)(1)), and criminal threats occurring on September 6 and 8, 2013 (count 2; § 422).

Defendant entered into a plea agreement whereby he pleaded guilty to count 1 and count 2 was dismissed. The trial court released defendant on his own recognizance and suspended sentencing pursuant to a Cruz waiver. Pursuant to the plea agreement, if defendant successfully completed a six-month residential treatment program to address domestic violence and anger management issues, the section 273.5 offense would be reduced to a misdemeanor. However, defendant would be sentenced to five years imprisonment if he failed to complete the program; failed to appear; committed any new offenses; battered, annoyed, threatened or harassed the victim; or failed to stay 100 yards away from a former spouse, who was the victim in two prior domestic violence convictions. Defendant also agreed that, should he violate any of the aforementioned conditions, the court would no longer be bound by the plea bargain, and he would not have the right to withdraw his plea. Additionally, defendant agreed the sentencing judge would decide by a preponderance of the evidence whether he had violated the agreement.

Defendant had difficulty finding a residential treatment program that would accept him. In November 2013, defendant's attorney informed the court that defendant had not entered a residential treatment program. The court scheduled sentencing in December 2013, and a probation officer's report was prepared on December 3. The court continued the matter when defendant found a placement in December 2013. Defendant did not complete the program due to medical problems.

On January 10, 2014, defendant was arrested for another domestic violence attack on the victim. The trial court held a hearing on January 13, 2014, to consider this new incident and defendant's Cruz waiver related to the September 2013 charges. The court said it was "inclined to find that [defendant] has violated his Cruz waiver" and revoked defendant's release on his own recognizance. The court scheduled a hearing regarding defendant's compliance with his Cruz waiver, to be heard along with any charges related to the January 2014 incident. The court explained, "if [defendant] has committed another assault, then this deal is out the window and he's going to prison." The matter was rescheduled twice, and each time defendant agreed that both the September 2013 and January 2014 matters would be heard on the rescheduled dates. On January 24, 2014, the trial court expressly asked defendant if he wanted his sentencing on the 2013 case to be put over to the next date and defendant said he did.

On January 31, 2014, without specifically stating that it was also considering whether defendant had violated his Cruz waiver, the same judge held a preliminary hearing regarding the January 2014 offenses. Defendant was present and had the opportunity to cross-examine the witnesses, including the victim, who testified defendant attacked and threatened to kill her.³ The court concluded there was probable cause to believe defendant committed the new offenses related to the January 2014 incident. Although the court did not state that it found defendant in violation of his Cruz waiver, when it asked the defense had it "missed anything further on behalf of the defense" before concluding the proceedings, defense counsel said the court had not. The court continued the sentencing on the charges related to the September 2013 offense to the same date calendared for the January 2014 offenses, and defendant consented. Defendantregistered no objection and made no comments related to a hearing or finding on the violation of the Cruz waiver.

When defendant was subsequently arraigned on the information involving the 2014 charges, the defense again made no statements concerning a hearing or finding on the Cruz waiver on the 2013 matter. The court indicated that matter was on for sentencing, which would be calendared upon conviction or acquittal of the new charges. The 2014 case was set for discovery compliance and trial.

At the discovery compliance hearing, the matter was continued to June 9, 2014, defense counsel noting that they would know what they were going to do concerning the sentencing on the 2013 matter on that date. Again, no mention was made of a hearing or finding on the Cruz waiver.

On June 9, 2014, the matter was continued to June 23, 2014, and again, no mention was made of a hearing or finding concerning the Cruz waiver. Before adjourning, the court asked counsel to let it know if it looked like the defense would not be prepared to proceed with sentencing on that date.

On June 23, 2014, the court imposed sentence on the September 2013 offense and, consistent with the negotiated agreement, sentenced defendant to five years imprisonment, the upper term for a violation of section 273.5 with a prior. The court also imposed fines, fees, and assessments we discuss post. The court had at its disposal the December 3, 2013 probation report. When asked at the beginning of the proceedings whether there was any legal cause judgment should not be pronounced, counsel for defendant stated there was not. Again, no mention was made of a hearing or finding on the Cruz waiver.

Defendant did not ask for an updated report and registered no objection to the court considering the December 3, 2013 report. Counsel did explain to the court that defendant failed to enroll in a residential program because, as he had previously explained, defendant was suffering from a medical condition that limited his ability towork and that had subsequently been resolved by surgery. Making a pitch for probation, counsel argued that this was an unusual case because defendant was suffering from a mental condition, i.e., substance abuse issues. He provided the court a certificate indicating defendant had completed an alcohol program in the jail. Referring to the probation report, counsel noted no circumstances in mitigation were listed, but argued that his substance abuse problem was a mitigating circumstance. The prosecutor noted that the plea form indicated that if defendant violated a condition imposed by the court or committed a new offense, his sentence would be five years and further noted that defendant's case was not unusual because defendant had a lengthy history of drug addiction. The court sentenced defendant to five years.

In January 2015, after a jury found defendant guilty of the January 2014 domestic violence offenses, the court held a sentencing hearing on that case. A new probation report was prepared and was considered by the court. At the sentencing hearing, the court also reconsidered but left "as previously stated" the sentence for the conviction on the September 2013 offenses. Including the five year sentence on the instant case, the court sentence...