PEOPLE v. DURHAM

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Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Linda Louise DURHAM, Defendant and Appellant.

C001436.

Decided: April 24, 1987

David Fuller, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Roger E. Venturi, Supervising Deputy Atty. Gen., for plaintiff and respondent.

In this appeal, defendant's principal contention is that the judge who revoked probation and imposed a prison sentence erred by failing to consider a certain finding made by the judge who had initially suspended imposition of sentence and placed defendant on probation.   However, the defendant had pled guilty, thus relieving the judge who suspended imposition of sentence of the obligation to make findings.   We conclude that where such findings nonetheless are gratuitously made, the judge who later imposes sentence is under no duty to consider them.

Defendant pled guilty to two counts of obtaining controlled substances by fraud and deceit.  (Health & Saf. Code, § 11173, subd. (a)(1).)   Imposition of sentence was suspended and defendant was placed on five years probation.   Upon her third probation violation, a different judge than the one who had granted probation sentenced defendant to prison for the upper term of three years.

I

 Defendant argues that the judge who revoked probation and imposed sentence (sentencing court), was obligated by California Rules of Court, rule 435(b)(1) to consider findings in mitigation made by the judge who suspended imposition of sentence and granted probation (probation court).  Rule 435 governs sentencing upon revocation of probation;  subdivision (b), paragraph (1) of the rule deals with cases such as this where imposition of sentence was previously suspended:  “Upon revocation and termination of probation pursuant to section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison:  [¶] (1) If the imposition of sentence was previously suspended, the judge shall impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 433(c).”  (Emphasis added.) 1

The rules of court expressly require findings when imposition of sentence is to be suspended only where conviction is by trial:  “If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at trial.”  (Rule 433(b);  emphasis added.)

In suspending imposition of sentence, the probation court stated:  “The Court having read and considered each of the probation reports find [sic ] the defendant's application for probation should be granted for the following reasons:  ․ there is no evidence that she was doing anything with the drugs except abusing them herself․”  Defendant contends that this statement is a finding of a circumstance in mitigation, specifically, that defendant exercised caution to avoid harm to others as contemplated by California Rules of Court, rule 423(a)(6).

We consider whether the above-quoted statement by the probation court constitutes a “finding” which the sentencing court is obligated to consider under rule 435(b)(1).   Defendant insists that it is, citing People v. Goldberg (1983) 148 Cal.App.3d 1160, 196 Cal.Rptr. 470.   There, defendant pled guilty to false imprisonment and imposition of sentence was suspended during a period of probation.   Thereafter probation was revoked and defendant was sentenced to the upper term of three years.  (Id., at p. 1161–1162, 196 Cal.Rptr. 470.)   When it suspended imposition of sentence, the probation court had made specific findings of circumstances in aggravation and in mitigation;  however, the sentencing court mentioned only the aggravating circumstances when explaining its sentence choice.  (Id., at p. 1162–1163, 196 Cal.Rptr. 470.)

The Goldberg court noted that the probation court did not have to make findings of circumstances in aggravation or mitigation because defendant had pled guilty;  such findings have to be made only if the imposition of sentence is to be suspended and probation granted after a conviction by trial.  (Cal. Rules of Court, rule 433(b).)  (Id., at p. 1163, 196 Cal.Rptr. 470.)   Even so, said Goldberg, since the probation court did make such findings, rule 435(b)(1) requires they be considered by the sentencing court upon revocation of probation.  (Ibid.)

The Goldberg court reasoned the language of rule 435(b)(1) is broad and inclusive, embracing any findings previously made, whether or not such findings are required;  and that such an interpretation is consistent with the “spirit and purpose” of the rule, “which was intended to preclude the possibility that a defendant's bad acts while on probation would influence his sentence upon revocation of probation.”  (Ibid.)

We respectfully suggest the Goldberg interpretation of rule 435(b)(1) is too broad and decline to follow it for the following reasons.

First, the term “findings” in rule 435(b)(1) refers to the findings specified in rule 433(b), i.e., “factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at the trial.”   It bears emphasis that rules 433(b) and 435(b)(1) apply in the same procedural setting, i.e., where the imposition of sentence is or has been suspended during a period of probation.  People v. McKinzie (1982) 134 Cal.App.3d 1016, 1019, 184 Cal.Rptr. 884, cited with approval in Goldberg, explains the interrelationship between rules 433(b) and 435(b)(1):  “[t]he purpose of rule 433(b) is to assist a later court, upon revocation of probation, to determine what mitigating or aggravating circumstances existed at the time probation was originally granted.   This is because rule 435(b)(1) provides that in imposing judgment after revocation of probation the court must ‘consider [] any findings previously made’ and determine the sentence based on circumstances existing at the time probation was granted and not upon subsequent events․  The purpose of having the [probation] court make the findings, where there has been a conviction by trial, is efficiency.   The [probation] court, having just heard the trial evidence, is in the better position to determine what mitigating and aggravating circumstances exist.   It usually would be awkward for the [sentencing] court, perhaps several years later, to review a mass of trial evidence․  [¶] ․ Rule 433(b) applies only ‘after a conviction by trial’ and the required findings are to be made ‘based upon evidence admitted at the trial.’   Thus it does not apply to a guilty plea, where the facts of the crime have not been tried.”  (Original emphasis.)

Second, Goldberg places unnecessary and difficult burdens on the sentencing court following revocation of probation.   Under its rationale, the sentencing court must consider findings made in circumstances where, as here, the probation court was under no duty to make findings.   To ascertain if findings were made the sentencing court will have to order a reporter's transcript prepared at least in cases in which there was no appeal from the order of probation (see rule 33(a)(2)).   The sentencing court must then determine from the transcript whether statements, declarations, observations, ruminations or mere musings of the probation court are the equivalent of factual findings of mitigating or aggravating circumstances.   This procedure will inevitably compromise the goal of judicial efficiency which underlies rules 433(b) and 435(b)(1).  (People v. McKinzie, supra, 134 Cal.App.3d at p. 1019, 184 Cal.Rptr. 884.)

Third, Goldberg's expansive interpretation of rule 435 tends indiscriminately to compound criteria affecting probation with criteria affecting aggravation and mitigation of sentence.  Goldberg avoided this confusion by noting that “the trial judge did make specific findings of fact, both in aggravation and in mitigation of the offense to which defendant pleaded guilty.”  (148 Cal.App.3d at p. 1163, 196 Cal.Rptr. 470.)   But the defendant here urges as a mitigating circumstance the reason the court gave for granting probation.   Though there is overlap between circumstances in mitigation or aggravation and criteria affecting probation, they are not the same and obviously serve different functions.  (Cf. Cal. Rules of Court, rules 414 and 423.)

Finally, Goldberg declares that an expansive interpretation of rule 435(b)(1) is consistent with the spirit and purpose of the rule, which was intended to preclude the sentencing court, upon revocation of probation, from considering events occurring after probation was granted.   An expansive interpretation is not needed to further this purpose because rule 435(b)(1) expressly forbids the sentencing court from considering these events.2

II

 Defendant contends the sentencing court failed to consider any of the mitigating factors present.

The court said “[t]here are no factors in mitigation whatsoever”, and the original probation report came to the same conclusion.   Thus, the situation here is different from that in People v. Burney (1981) 115 Cal.App.3d 497, 171 Cal.Rptr. 329, upon which defendant relies, where the court found no circumstances in mitigation but the probation report disclosed some.   (Id., at p. 505, 171 Cal.Rptr. 329.)

Defendant asserts the probation report does set forth mitigating circumstances.   However, these alleged mitigating factors are either inherent in the nature of defendant's crime or are based entirely on statements defendant made for the report.   The mere assertion of a mitigating factor by a defendant does not establish that assertion as a fact.  (People v. Regalado (1980) 108 Cal.App.3d 531, 538, 166 Cal.Rptr. 614.)

III

 Defendant contends that the sentencing court erred in considering her arrest record as a basis for finding aggravating circumstances.   California Rules of Court, rule 421(b)(2) provides that numerous prior convictions constitute a circumstance in aggravation.   The sentencing court said the factor in aggravation was defendant's “extensive [criminal] background.”   Suffice to say, defendant's nine-page criminal history contains not only arrests but numerous prior convictions.   Moreover, defendant failed to object below, and a failure to challenge information upon which a sentence is based waives the right to raise the issue on appeal.  (People v. Evans (1983) 141 Cal.App.3d 1019, 1021, 190 Cal.Rptr. 633.)

The judgment is affirmed.

FOOTNOTES

1.   Rule 433 deals with the initial sentencing hearing as distinguished from sentencing upon revocation of probation with which rule 435 deals.   Paragraph (c) of rule 433 specifies certain matters to be heard and determined when, at the initial sentencing hearing, a sentence of imprisonment is to be imposed, even though its execution will be suspended.

2.   Rule 435(b)(1) provides in pertinent part:  “The length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term nor in deciding whether to strike or specifically not order the additional punishment for enhancements charged and found.”

PUGLIA, Presiding Justice.

CARR and SPARKS, JJ., concur.