Opinion
A151933
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDERICK MARC COOLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-162077-2)
Following defendant Frederick Marc Cooley's convictions for misdemeanor false imprisonment (Pen. Code, §§ 236, 237) and misdemeanor simple battery on a former cohabitant (§ 243, subd. (e)(1)), the trial court granted a three-year term of probation. The trial court also imposed a criminal protective order and various fines and fees. The court subsequently vacated defendant's probation period due to earned custody and conduct credits, but it did not vacate the protective order or imposed fines and fees. Defendant contends on appeal the protective order and imposed fines and fees issued at sentencing must be stricken as they were issued in excess of the court's jurisdiction and without the requisite findings. We agree substantial evidence supports issuance of the protective order, but we remand for the limited purpose of assessing the appropriate duration of the order based on the factors set forth in section 136.2, subdivision (i)(1). We also agree fees related to defendant's probation must be stricken. In all other respects we affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted.
I. BACKGROUND
Defendant was charged by amended information with one count of kidnapping (§ 207, subd. (a); count 1), three counts of injuring a spouse, cohabitant, fiancé(e), person with a past or present dating relationship, or child's parent (§ 273.5, subd. (a); counts 2, 3, 4), and one count of interference with a wireless communication device (§ 591.5; count 5). These charges arose from an incident in December 2016, during which defendant allegedly punched his ex-girlfriend repeatedly and forced her to accompany him to various locations. It was also alleged with respect to counts 2, 3, and 4 that defendant inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).)
Following a multiday trial, defendant was convicted of two lesser included offenses: misdemeanor false imprisonment (§§ 236, 237) and misdemeanor simple battery on a former cohabitant (§ 243, subd. (e)(1)). The court sentenced defendant on count 2 to 218 days, with 218 days of actual credit and 218 days of conduct credit, three years of probation, and ordered defendant to pay various fines and restitution. The court stayed sentencing on count 1 pursuant to section 654.
The prosecution also requested "a full stay away order with an admonishment that a violation of that order will result in charges." The prosecution sought a 10-year stay away order based on defendant's history of violating restraining orders and the victim's expressed fear of retaliation. The court subsequently issued a 10-year "Criminal Protective Order—Domestic Violence" on Judicial Council form CR-160, specifying the victim as the person protected. The boxes next to "Probation Condition Order (Pen. Code, § 1203.097)" and "Penal Code, § 273.5(j)" were checked. Other boxes specifying the statutory basis for the order, including section 136.2, subdivision (i)(1), were not marked.
Defendant timely appealed. Following defendant's appeal, the trial court vacated defendant's probation because his custody and conduct credits exceeded the maximum sentence allowed for count 2. No further order was made as to the protective order, and the court declined to address the various fines and restitution imposed at sentencing.
II. DISCUSSION
A. Jurisdiction
Defendant argues the trial court lacked jurisdiction to impose a protective order, fines, or fees because his custody and conduct credits exceeded the maximum sentence for his conviction. Neither party disputes that defendant's custody and conduct credits exceeded the maximum sentence for his conviction. Accordingly, probation was inappropriate and properly terminated by the trial court. However, defendant expands this argument in an attempt to void the protective order and imposed fines. Specifically, defendant argues his sentence had already been executed prior to sentencing because of his custody and conduct credits. As a result, defendant asserts the court was deprived of jurisdiction to impose the protective order and fines. We disagree.
Generally, a trial court is deprived of jurisdiction "once execution of the sentence has commenced." (People v. Karaman (1992) 4 Cal.4th 335, 344 (Karaman).) "In a criminal case, the execution of a judgment of conviction is the process of carrying the judgment into effect. [Citation.] The manner of executing a judgment sentencing a defendant to imprisonment is prescribed by the Penal Code. When a judgment other than death has been pronounced, and the judgment is for incarceration in a state prison, either a certified copy of the minute order or a certified abstract of the judgment 'shall be forthwith furnished to the officer whose duty it is to execute the . . . judgment, and no other warrant or authority is necessary to justify or require its execution'; the certified abstract or minute order constitutes the commitment. [Citations.] The commitment document is the order remanding the defendant to prison and is ' "the process and authority for carrying the judgment and sentence into effect." ' " (Ibid., fns. omitted.) "[T]he trial court's jurisdiction terminates either at the point the judgment is entered in the minutes of the court or at the time a defendant begins to serve his or her sentence, essentially whichever occurs first . . . ." (Id. at pp. 345-346.)
Conversely, a court is not deprived of jurisdiction if a judgment of conviction has not been carried into effect. Here, there was no judgment to execute prior to July 7, 2017, when the sentence was first entered in the court's minutes, and the court had not taken any steps to relinquish custody of defendant. Nor do the two cases cited by defendant support his argument that presentence custody deprives the court of jurisdiction before sentencing.
In People v. Berry (1968) 257 Cal.App.2d 731, the defendant was found guilty of violating section 647a, which carried a maximum sentence of one year in county jail. (Berry, at pp. 733, 738-739.) Following his conviction, the defendant was twice committed to a state hospital for treatment under the Mentally Disordered Sex Offender Act. (Berry, at pp. 733-735.) After a report concluded the defendant "was not amenable to further treatment," the court reinstituted the criminal proceedings, imposed a suspended six-month jail sentence, and placed the defendant on a three-year probation. (Id. at p. 735.) The Court of Appeal found various procedural errors regarding the defendant's state hospital commitments but concluded the subsequent order to resume criminal proceedings was valid. (Id. at pp. 737-738.) However, at the time of sentencing the defendant had served more time than the maximum sentence for his conviction because of the commitments. (Id. at pp. 738-739.) Accordingly, the court concluded: "The only action which the trial court could validly have taken, on that date, in the criminal proceeding, was to impose a misdemeanor sentence and then to order that defendant be discharged from further custody as having already served the sentence so imposed." (Id. at p. 739.) Berry merely stands for the proposition that probation is not appropriate if custody credits exceed the maximum sentence. Nothing in Berry indicates the court was prohibited from imposing fines or other postconviction orders in connection with sentencing.
Similarly, in Karaman, supra, 4 Cal.4th 335, the California Supreme Court addressed "a narrow exception to the general rule depriving the court of authority to modify a sentence once it has been imposed and entered in the clerk's minutes." (People v. Howard (1997) 16 Cal.4th 1081, 1088.) There, the defendant pleaded guilty to robbery, and the trial court sentenced the defendant to the lower term of two years for the robbery charge, plus a two-year enhancement for personal firearm use. (Karaman, at pp. 340-341.) The court contemporaneously ordered execution of the sentence stayed for one week and the clerk formally entered the sentence and stay in the court minutes. (Id. at p. 341.) The Supreme Court concluded that while entering the sentence into the minutes usually begins execution of sentence and deprives courts of jurisdiction to resentence a defendant, "We found no authority, however, forbidding a court from reducing a sentence previously imposed but temporarily stayed, if the sentence had not yet been executed by delivery of a commitment order." (People v. Howard, at p. 1089, citing Karaman, at p. 350.) Here, however, the July 7, 2017 minute order did not alter a prior sentence but rather sentenced defendant for the first time. As discussed above, prior to July 7, 2017, no sentence had been entered in the court's minutes and defendant had not begun serving that sentence.
Defendant's position would also contradict section 2900.5, which instructs courts on how to apply presentence time in custody. Section 2900.5 states: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed . . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served." (Id., subd. (a).) Accordingly, defendant's presentence custody creates credits that are applied toward his subsequent sentence. It does not preemptively execute a subsequent judgment.
We are unaware of any authority suggesting a trial court is constrained from imposing fines or a criminal protective order when sentencing a defendant in the first instance. Where, as here, no prior sentence had been entered and defendant's time in custody was not served pursuant to such a sentence, the court retains its jurisdiction and may sentence defendant as allowed by law. B. Criminal Protective Order
Defendant also argues imposition of the protective order and fines amounts to double jeopardy. However, the concept of double jeopardy arises from " 'repeated attempts to convict an individual for an alleged offense.' " (1 Witkin, Cal. Criminal Law (4th ed. 2012) Defenses, § 116, p. 569.) As discussed above, we reject defendant's argument that his sentence could be executed prior to any actual sentencing. Accordingly, the protective order and fines were not imposed as part of some "additional" sentencing. Rather, they were part of defendant's original sentence.
The trial court issued a criminal protective order that identified section 1203.097 and section 273.5, subdivision (j) (section 273.5(j)) as the statutory bases for the order. While the form contained boxes identifying other statutory provisions, including section 136.2, subdivision (i)(1) (section 136.2(i)(1)), none of those other boxes were checked. Defendant contends neither section 1203.097 nor section 273.5(j) are applicable, and the protective order is thus unlawful. The Attorney General concedes neither section 1203.097 nor section 273.5(j) are applicable, and we agree.
Section 1203.097, subdivision (a)(2) provides: "(a) If 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 . . . [¶] . . . [¶] (2) [a] criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions." Section 273.5(j) states in part: "Upon [a felony] conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court." Accordingly, neither statutory provision applies because defendant was not convicted of a felony or subject to probation.
However, the Attorney General argues the court could have properly issued the protective order under section 136.2(i)(1), and its failure to check the box identifying that statutory provision constitutes harmless error. Section 136.2(i)(1) provides in pertinent part: "In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 . . . , the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. The order may be valid for up to 10 years, as determined by the court. . . . It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and his or her immediate family." (§ 136.2, subd. (i)(1).) " ' "Domestic violence" ' is defined in section 13700, subdivision (b) as 'abuse committed against . . . a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.' ' "Abuse" ' is defined as 'intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.' (§ 13700, subd. (a).)" (People v. Therman (2015) 236 Cal.App.4th 1276, 1279 (Therman).)
At sentencing, defendant did not specifically object to the issuance of the protective order. The Attorney General thus argues defendant forfeited this issue. We disagree. As explained by the Second Appellate District in People v. Ponce (2009) 173 Cal.App.4th 378, 381-382, "As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. [Citation.] But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court's jurisdiction. [Citation.] Because this case involves the jurisdictional validity of the trial court's decision to issue a three-year protective order during sentencing, we will consider [the defendant's] claim on the merits." (See People v. Robertson (2012) 208 Cal.App.4th 965, 995-996.) For these same reasons, we find defendant has not forfeited this issue.
Here, defendant's convictions amount to "abuse under section 13700." In Therman, the court found a felony false imprisonment conviction satisfied the definition of "abuse" under section 13700. The court noted "the factual basis for the plea establishes that defendant unlawfully restrained his spouse using force and/or violence. On this admittedly sparse record, the trial court could reasonably conclude that defendant intentionally or recklessly caused or attempted to cause his spouse bodily injury, or placed her in reasonable apprehension of imminent serious bodily injury to herself." (Therman, supra, 236 Cal.App.4th at p. 1279.) Similarly, the false imprisonment and battery convictions on counts 1 and 2 arose from defendant's violent conduct toward his ex-girlfriend.
Generally, a trial court's failure to identify the correct statutory basis for its order does not automatically mandate reversal. " ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 976.) In other words, it does not matter that the trial court may have mistakenly believed sections 1203.097 and 273.5 gave it authority to issue the protective order, because section 136.2 provided that authority.
Because defendant's convictions qualify as "crime[s] involving domestic violence" under section 136.2(i)(1), it would have been appropriate for the trial court to consider issuing a restraining order under that section. (Ibid. ["the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime" (italics added)].) Likewise, substantial evidence supports the issuance of a protective order in this matter. (Therman, supra, 236 Cal.App.4th at p. 1279 [" ' "We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings." ' "].) " ' "Substantial evidence" means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.' " (People v. Lehman (2016) 247 Cal.App.4th 795, 804.) In this case, defendant's ex-girlfriend testified defendant engaged in various acts of violence against her, and police testimony supported various aspects of her testimony. The jury found such evidence sufficient to convict defendant. The decision to impose a protective order was thus appropriate.
However, " '[j]udicial discretion to grant or deny an application for a protective order is not unfettered. The scope of discretion always resides in the particular law being applied by the court, i.e., in the " 'legal principles governing the subject of [the] action.' " ' " (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264-1265.) While we agree with the trial court's decision to impose a protective order, a question remains regarding the length of that order. As relevant here, section 136.2 instructs the court to consider "the seriousness of the facts before the court, the probability of future violations, and the safety of a victim and his or her immediate family" when determining the duration of any restraining order. (Id., subd. (i)(1).) The record is silent as to whether the court considered these factors when imposing the protective order. While the prosecutor stated defendant "violated the restraining order multiple times in the past and has shown no regard for the restraining orders" and "[t]he victim has expressed fear of retaliation," the court did not address any of these comments when issuing the protective order. Instead, the court only stated: "I will issue a domestic violence restraining order for a period of 10 years. You may have no contact with the complaining witness in this case in person, in writing, over the phone, or through a third party. If you contact her or try to get contact to her through other people, you potentially are looking at additional charges. So no contact whatsoever, all right?"
We are not able to conclude, based on the record before this court, that substantial evidence supports the 10-year duration. "By definition, 'substantial evidence' requires evidence and not mere speculation." (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted.) While the prosecutor argued there was a safety concern and risk of future violations, she did not identify any supporting evidence. Nor does the Attorney General's brief cite any evidence in the record supporting such allegations. (See People v. Ponce, supra, 173 Cal.App.4th 378, 384-385 ["The prosecutor did not make an offer of proof or any argument to justify the need for a protective order. He simply said, '[W]e'd also like to have a stay-away order in this case . . . .' But a prosecutor's wish to have such an order, without more, is not an adequate showing sufficient to justify the trial court's action."].)
The record also contains conflicting evidence regarding the seriousness of the victim's injuries. The victim testified defendant repeatedly hit her, chased her, threatened to kill her, and caused her to pass out multiple times. She testified one series of punches caused her to feel a crack and excruciating pain in her jaw. Contra Costa County Sheriff's Deputy James Brooks testified that when he interviewed the victim at the hospital he observed swelling on the left side of the victim's face, some missing braids from the right side of her head, and that the victim was unable to fully open her mouth. Conversely, the emergency room physician who treated the victim testified a CAT scan did not reveal any facial or skull fractures. Nor did he observe any intraoral cuts or facial bruising or swelling, and he did not prescribe any medication. The doctor testified he would have expected to see more physical injuries based on the victim's description of the incident, but noted her complaints were consistent with being punched in the head. The jury, in considering such evidence, declined to convict on the charged felonies, and instead convicted on lesser included misdemeanor offenses.
The conviction thus indicates, for example, the prosecution failed to prove (1) defendant willfully inflicted a physical injury on his cohabitant or former cohabitant, and (2) the injury inflicted by defendant resulted in a traumatic condition. (§ 273.5, subd. (a); CALCRIM No. 840.) Instead, the prosecution only proved misdemeanor simple battery—i.e., (1) defendant willfully touched the victim in a harmful or offensive manner, and (2) the victim is the person with whom defendant currently has, or previously had, a dating relationship. (§ 243, subd. (e)(1); CALCRIM No. 841.) Simple battery does not require defendant to intend to hurt someone or cause pain or injury of any kind. (CALCRIM No. 841.)
To summarize, while substantial evidence supports the issuance of a protective order in this matter, we cannot conclude substantial evidence supports the duration imposed by the trial court. Accordingly, we remand to the trial court to assess the appropriate length of the protective order pursuant to the factors set forth in section 136.2(i)(1). (Accord People v. Selga (2008) 162 Cal.App.4th 113, 120 ["the [trial] court abused its discretion in imposing probation conditions pursuant to section 1203.097 . . . . However, we agree with the People that a stay-away order . . . may nonetheless be an appropriate condition of probation in light of the circumstances of the offense . . . . [Citation.] Accordingly, we will remand the matter to the trial court to exercise its discretion under section 1203.1."].) C. Imposed Fees and Fines
The court imposed a $200 restitution fine, a $200 probation fine, a $500 domestic violence penalty, a criminal conviction assessment (CCA) fee of $60, a court operations assessment (COA) fine of $80, and a probation report fee of $176. Both defendant and the Attorney General agree the $500 domestic violence penalty and the stayed $200 probation revocation fine should be stricken because they were imposed in connection with the unauthorized probationary term. Likewise, the Attorney General concedes the $176 probation report fee should be stricken because the record does not indicate defendant was the subject of any presentence investigation or report. We accept the Attorney General's concessions and strike those fees.
However, the parties disagree as to whether the $200 restitution fine, the $60 CCA fee, and the $80 COA fine are appropriate. The trial court imposed the $200 restitution fine pursuant to section 1202.4, subdivision (b). Nothing in section 1202.4 ties the restitution fine to a probationary term. To the contrary, the statute expressly states: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b), italics added.) Here, defendant was convicted of two misdemeanors. The trial court was thus obligated to impose a restitution fine because the court did not identify any "compelling and extraordinary reasons for not doing so." (People v. Guillen (2013) 218 Cal.App.4th 975, 990 ["A criminal conviction is therefore clearly demarcated as the event that brings into existence the mandate to impose a restitution fine. It is also the basis upon which the mandated restitution order remains in force following a period of probation and after a prison sentence has been completed."]; People v. Chambers (1998) 65 Cal.App.4th 819, 822 ["The triggering event for imposition of the restitution fine is still conviction."].) Accordingly, the trial court's subsequent revocation of defendant's unauthorized probation did not void the restitution fee. Those were mandated upon his conviction.
Similarly, the CCA and COA fees are directly connected to defendant's convictions. Government Code section 70373, subdivision (a)(1) requires a CCA fee "shall be imposed on every conviction for a criminal offense" and "shall be imposed in the amount of thirty dollars ($30) for each misdemeanor . . . ." Section 1465.8, subdivision (a)(1) provides in relevant part that a COA fee "shall be imposed on every conviction for a criminal offense . . . ." These fees also are triggered by conviction. (People v. Cortez (2010) 189 Cal.App.4th 1436, 1443; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Because the restitution fee, the CCA fee, and the COA fee arise from defendant's conviction rather than from any prison or probationary sentence, the court properly imposed those fees.
III. DISPOSITION
The matter is remanded to the trial court for the limited purpose of assessing the appropriate duration of the protective order pursuant to the factors set forth in section 136.2(i)(1). The $200 probation fine, the $500 domestic violence penalty, and the $176 probation report fee are also stricken. In all other respects, the judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Kelly, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------