IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A118155

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1 Filed 2/29/08 P. v. Campos CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JESUS VILLALOBOS CAMPOS, Defendant and Appellant. A (Solano County Super. Ct. No. FCR211101) Jesus Villalobos Campos appeals from a judgment entered by the Solano County Superior Court sentencing him to 16 months in state prison. He asserts the trial court erred by failing to exercise its discretion to determine whether probation was appropriate, based on a mistaken belief that it had no authority to impose probation. We agree there was error, and therefore reverse and remand the matter for the trial court to exercise its discretion. FACTUAL AND PROCEDURAL BACKGROUND On October 21, 2003, appellant pled no contest to possession of methamphetamine (Health and Saf. Code, 11377, subd. (a)). The trial court suspended imposition of sentence under Proposition 36 1 and placed appellant on probation. When appellant failed to appear at a probation hearing, the court revoked probation and issued a bench warrant. 1 Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, amended state law to require that certain adult drug offenders receive probation, conditioned on participation in and completion of an appropriate drug treatment program, 1

2 On March 31, 2007, appellant was arrested for driving under the influence of alcohol, causing property damage, and a hit-and-run. He admitted he violated probation by failing to appear at his probation hearing. At a sentencing hearing on May 22, 2007, defense counsel asked the court to follow the probation department s recommendation, which was to modify probation to require appellant to serve one year in county jail, with probation to terminate upon his release. The trial court stated: I don t have authority to put him on probation when he s clearly not eligible for probation. The district attorney responded: Correct. I think the alternative, your Honor, I mean is would be a state prison commitment. The court stated: Right, because he s illegally here, so he s not eligible for probation, plus he never shows up when given an opportunity. The trial court imposed the lower prison term of 16 months for a violation of Health and Safety Code section 11377, subdivision (a), stating: At this time a further grant of probation is denied. The defendant is ineligible. He s unlawfully in the United States, number one; number two, he s never shown up to be available for probation, so he s not eligible. DISCUSSION Appellant contends the trial court erred in determining it did not have the authority to impose probation. We agree. [T]he severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court.... [T]he law contemplates an exercise of that discretion by the sentencing judge and in the absence of such exercise there has been no lawfully imposed sentence. (People v. Hernandez (1984) 160 Cal.App.3d 725, 749; see also Pen. Code, 1203, subd. (b)(3) [at sentencing, the court shall hear and determine... the suitability of probation in the particular case.... shall consider any report of the probation officer,... and shall make a statement that it has considered the report ].) Thus, where it appears from the record that the trial court failed to exercise the instead of receiving a prison term or probation without drug treatment. (People v. Johnson (2003) 114 Cal.App.4th 284, 293.) 2

3 discretion vested in it by law, its ruling shall be set aside and the case remanded so that the trial court may exercise that discretion. (People v. Juarez (2004) 114 Cal.App.4th 1095, 1103; People v. Wallace (1963) 59 Cal.2d 548, 551.) There was no waiver. People v. Scott (1994) 9 Cal.4th 331, 340 (Scott) addressed whether the waiver doctrine applies to a defendant s claim that the trial court gave improper reasons in support of its discretionary sentencing decision. Scott held, the waiver doctrine should apply to claims involving the trial court s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. (Id. at p. 353.) Relying on Scott, respondent asserts that appellant has forfeited his claim on appeal. Assuming, without deciding, that the waiver doctrine applies in this case, we conclude there was no waiver. The record shows that appellant adequately raised the issue below by urging the court on two occasions to adopt the recommendation of the probation department, which was to continue probation with the condition that appellant serve one year in county jail. Implicit in defense counsel s statement was an assertion that the trial court had the authority to exercise its discretion to impose probation. The record shows the trial court failed to exercise its discretion. The record shows the trial court failed to exercise its discretion to determine whether appellant was eligible for probation, based on the mistaken belief that it had no authority to impose probation. 2 As noted, the trial court stated twice that appellant was not eligible for probation. Without mentioning the probation department s report or the department s recommendation that appellant be continued on probation, the trial court 2 Respondent does not dispute that appellant was eligible for probation or that the trial court had the authority to continue probation. 3

4 stated it did not have authority to put him on probation.... In denying probation, the trial court once again stated: The defendant is ineligible. Respondent cites People v. Henson (1991) 231 Cal.App.3d 172, 182 (Henson), disapproved on other grounds in People v. Patterson (1999) 72 Cal.App.4th 438, 444, for its holding that the lower court s mere silence as to whether or not it was engaging in an exercise of discretion is insufficient to sustain appellant s burden of proof. Henson, however, is inapposite because here, the trial court was not merely silent; rather, it made several affirmative statements showing it believed it had no authority to exercise its discretion to determine whether probation was appropriate. Respondent s reliance on People v. Espinoza (2003) 107 Cal.App.4th 1069 (Espinoza) is also misplaced. Espinoza held that a trial court may deny probation where the defendant faces imminent deportation and would therefore be unable to satisfy a condition of probation requiring him to complete a drug treatment program. (Id. at pp. 1073, 1076.) Respondent asserts that the trial court s comment that appellant is illegally here shows that it properly took into account appellant s illegal status and exercised its discretion in denying probation. The record shows, however, that the trial court stated:... because he s illegally here, so he s not eligible for probation.... Thus, it appears the trial court noted appellant s illegal status, not as a factor in exercising its discretion to deny probation, but in support of its mistaken belief that appellant was ineligible for probation due to his illegal status. 3 In fact, it is unlikely that the trial court commented on appellant s illegal status in exercising its discretion because here, unlike in Espinoza, appellant s illegal status would have had little bearing on a determination of whether probation should be imposed. Because the continued probation recommended by the probation department would have required appellant to be confined in county jail for one year, upon which point probation 3 Similarly, the trial court commented that appellant was ineligible for probation because he did not report to his Proposition 36 program, stating: The defendant is ineligible. He s unlawfully in the United States, number one; number two, he s never shown up to be available for probation, so he s not eligible. 4

5 would terminate, and an illegal alien may not be deported until he has completed his sentence, People v. Arciga (1986) 182 Cal.App.3d 991, 1001, appellant s illegal status would not have precluded him from satisfying the condition of his probation, i.e., serving one year in county jail. Finally, respondent argues that even if the court misunderstood the scope of its discretion, it is not reasonably probable that appellant would have been granted probation in the absence of the error because he was subject to deportation and failed to appear at a probation hearing. However, [f]ailure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. (People v. Penoli (1996) 46 Cal.App.4th 298, 306, citing e.g., In re Geronimo M. (1985) 166 Cal.App.3d 573, [Youth Authority commitment circumventing statutory procedures was prejudicial notwithstanding contention that appellant would have been committed under proper procedures].) Thus, a ruling otherwise within the trial court s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. (Id. at p. 302.) Where the record shows that the trial judge refused to exercise his discretion in the erroneous belief that he had none,... the judgment must be reversed, and the cause remanded... in order that the trial court may have the opportunity to exercise its discretion.... (People v. Wallace, supra, 59 Cal.2d at p. 553.) 5

6 DISPOSITION The judgment is reversed and remanded to the trial court with directions to exercise its discretion to determine whether probation should have been imposed. Horner, J.* We concur: McGuiness, P. J. Pollak, J. * Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 6