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CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
(Los Angeles County
Super. Ct. Nos. PA040566
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Darlene E. Schempp, Judge. Affirmed.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and
Marc J. Nolan, Deputy Attorneys General, for Plaintiff and Respondent.
Salvador Martinez appeals from the judgment sentencing him to state prison for
violating probation. We affirm.
FACTS AND PROCEDURAL HISTORY
In April 2002, Salvador Martinez pleaded no contest in the San Fernando branch
of Los Angeles Superior Court to possession of methamphetamine. (Health and Saf.,
§ 11377.) The court sentenced him under Proposition 36 to three years' probation. (Pen.
Code, § 1210 et seq.) In November 2002, he pleaded guilty to a second charge of
possession of methamphetamine and the San Fernando court sentenced him again under
Proposition 36 to three years' probation.
In April 2003, Martinez tried to cash at a North Hollywood check cashing store a
$492 check to him drawn on the account of "Learning Independence." Nothing on the
face of the check suggested anything was amiss. Two years earlier, however, Learning
Independence had thrown away a set of blank checks, one of which was the check that
Martinez presented. Because the store's cashier thought it odd that Martinez showed his
California identification card instead of his driver's license to confirm his identification,
she faxed a copy of the check to her company call center. The call center told her the
check had been stolen and that the police were on their way. About 15 minutes later, the
police arrived and arrested Martinez.
Charged with forgery (Pen. Code, § 470), Martinez was tried in the Van Nuys
branch of superior court for violating his probation. The hearing took place on
October 6, 2003. He testified he was a commercial truck driver and had received the
check for work he did on the side. He explained he had been in downtown Los Angeles
when a man named Carlos asked him to deliver supplies to a jobsite Martinez variously
described as being at 8th and Main or 3rd and Main. Additionally, Martinez stated at one
time or another that the man's name was Carlos, or Juan, or was a group of people whose
names he forgot. The court found Martinez did not write the forged check, but did try to
cash it knowing it was fraudulent. The court therefore found Martinez had violated his
probation, and sentenced him to two years in state prison. This appeal followed.
1. Probation Violation Hearing Properly in Van Nuys
Martinez objected to the Van Nuys court trying his probation violation. He
contends the San Fernando court that had accepted his plea bargains and put him on
probation should have heard his probation violation. In support, he cites People v.
Arbuckle (1978) 22 Cal.3d 749 (Arbuckle), which entitles a plea-bargaining defendant to
insist that the same court that accepts his plea also pass sentence. Courts have not,
however, extended Arbuckle to probation violations. People v. Beaudrie (1983) 147
Cal.App.3d 686, explained "Arbuckle gave defendants the right to be sentenced . . . by
the same judge who accepted a plea of guilty. . . . [But] there is a distinction between a
sentencing hearing following a plea of guilty and a sentencing following a revocation
hearing. [The defendant in this case] was sentenced by the same judge who accepted his
original plea. Sentence was suspended and he was placed on probation. Once that
sentence was imposed, Arbuckle no longer applied." (Id. at pp. 693-694; see also People
v. Watson (1982) 129 Cal.App.3d 5, 8 [rejected as "absurd" argument that "if probation is
revoked years after the bargain is kept and sentence technically imposed for the first time,
[defendant] is entitled to have the same judge who accepted the plea impose `the
Courts have not extended Arbuckle to probation violation hearings, nor should
they. Multi-judge superior courts act as one superior court. (Silverman v. Superior Court
(1988) 203 Cal.App.3d 145, 150-151; Cal. Const., art. 6, § 4.) Even if a superior court
creates departments for administrative ease and judicial efficiency, the departments
ordinarily operate under the presumption that they are jurisdictionally equivalent and
fungible. Arbuckle, resting on contract principles, created a limited exception to the
fungibility of superior court departments. It did not, however, ground itself in
constitutional or statutory mandates, speaking instead of the defendant's expectations and
reliance on the plea bargain's implied terms. (Arbuckle, supra, 22 Cal.3d at pp. 756-
757.) Because Arbuckle did not rest on constitutional or statutory law, we may weigh
Arbuckle's reasoning against the practical concerns of sentencing outside a plea bargain.
We find those reasons wanting. When a probationer commits a new offense, often
many months, or even years, may have passed since the original offense. The remoteness
in time between the original offense and the new offense creates a lower expectation
that--unlike at the time of the plea bargain--the original sentencing judge will still be
available, let alone hearing criminal matters. Practical problems abound. For example,
criminal hearings implicate courthouse security. The original sentencing judge may have
moved to another assignment in a courtroom not equipped to handle a prisoner in
custody. For that judge to hear the new offense, he or she would likely need to relocate
to another courtroom, perhaps in another court branch, with his or her staff in tow. The
burdens of such a relocation, and its disruption to the rest of the court's calendar, are
obvious. And to what end? Oftentimes it will stand to the reoffending defendant's
benefit to have one judge handle both the new offense and the probation violation,
because it makes a global disposition of the offenses more likely. But if the probation
violation is split from the new offense and returned to the original sentencing judge, the
defendant's chances of a global settlement may evaporate.
We acknowledge that Arbuckle said that "mere administrative convenience"
should not be used to thwart the reasonable expectation of a defendant in having his or
her sentence imposed by the judge before whom the plea was entered. (Arbuckle, supra,
22 Cal.3d at p. 757, fn. 5.) Arbuckle was addressing the relatively minor inconvenience
in those situations where the trial judge had been reassigned a few weeks after the plea
was taken, and then must be reassigned to impose sentence. That is not the case here,
where the probation violation hearing was held 18 months after the plea. Arbuckle did
not consider the security and administrative problems encountered when a trial judge
long since reassigned out of a criminal courtroom is compelled to sentence dozens or
even hundreds of defendants previously placed on probation. We agree with the court in
People v. Watson, supra, 129 Cal.App.3d at page 8, that any expectation a defendant
might have that the original judge would sentence him in that situation, is unreasonable.
People v. Ellison (2003) 111 Cal.App.4th 1360, is
unavailing. Ellison involved three judges. The first judge accepted the defendant's plea,
but told the defendant he would be unavailable to impose sentence. Accordingly, the
defendant waived his Arbuckle rights and agreed to be sentenced by a second judge. (Id.
at p. 1363.) At the sentencing hearing, the second judge ordered the defendant's
immediate release from jail pending a final probation report. The jail did not release the
defendant, however, because "someone at the jail" contacted a third judge and asked that
judge to put a "hold" on the defendant. (Id. at p. 1364.) The defendant's case thereafter
returned to the first judge, who withdrew the second judge's release order and ordered the
defendant's imprisonment. (Id. at p. 1366.) On appeal, the defendant challenged his
imprisonment, arguing the first judge had no jurisdiction to countermand the second
judge's release order. The Ellison court agreed, holding the first and third judges
overstepped their authority by interfering with the second judge's release order. (Id. at
p. 1367.) The Ellison court explained that each county's superior court sits as one court,
even if it is divided into different departments and courtrooms for administrative ease and
practical necessity. As the various departments sit as "one court," orders entered in one
department are binding on all departments. (Id. at p. 1366.) Hence, the first and third
judges had no authority to overrule the second judge. Although Ellison's procedural
history involved the defendant's Arbuckle rights--for without an Arbuckle waiver the
second judge would not have obtained jurisdiction--the Ellison court's analysis did not
involve application of Arbuckle, other than to note the Arbuckle waiver was needed to
vest jurisdiction with the second judge. Ellison did not hold, as Martinez contends, that
Arbuckle rights extend to probation violation hearings.
2. Sufficiency of the Evidence
Intent to defraud is an element of forgery. (Pen. Code, § 470; CALJIC
No. 15.02.) Possession of a forged check is, by itself, some evidence of forgery.
Combined with some corroborative evidence, however slight, possession of a forged
check is enough to support a conviction for forgery. (People v. Reisdorff (1971) 17
Cal.App.3d 675, 679.)
Martinez contends there was insufficient evidence to conclude he had committed
forgery. He notes he did not write or sign the check, and there was nothing suspicious on
the face of the check to suggest it was invalid. Moreover, he made no attempt to
misrepresent himself or hide his identity, as he presented valid identification when he
tried to cash the check.
Preponderance of the evidence, a lower threshold than needed to support a new
criminal conviction, is the standard of proof for a probation violation. (People v.
Rodriguez (1990) 51 Cal.3d 437, 440-441, 447.) Against his evidence suggesting
innocence weighed Martinez's admission that he had not heard of "Learning
Independence," the company on whose account his check was drawn. Moreover, no
obvious connection existed between that company and the jobsite in downtown
Los Angeles. Finally, Martinez made inconsistent statements about who approached him
and the jobsite's location. Such shifting or inconstant testimony presumably aroused the
trial court's suspicion, undercutting Martinez's credibility with the court. Because we
cannot second-guess the trial court's credibility findings, we are obligated to assume the
court disbelieved Martinez's testimony that he did not know the check was forged.
Accordingly, there was sufficient evidence to prove Martinez had violated his probation.
3. Prison Instead of Probation
Proposition 36 ordinarily mandates reinstatement of probation the first two times a
defendant violates a drug-related condition of probation. (In re Taylor (2003) 105
Cal.App.4th 1394, 1397.) Because his forgery offense was only his second probation
violation (the first being his second methamphetamine conviction), Martinez contends the
court erred in revoking his probation and sending him to prison.
unavailing because it is only if the probation violation is
"drug-related" that the prohibition against incarceration arises. (In re Taylor, supra, 105
Cal.App.4th at p. 1398.) Proposition 36 defines "drug-related condition of probation" as
"a probationer's specific drug treatment regimen, employment, vocational training,
educational programs, psychological counseling, and family counseling." (Pen. Code,
§ 1210.1, subd. (f).) Passing a bad check does not fall within that definition. (Compare
In re Taylor, supra, 105 Cal.App.4th 1394 [not appearing for drug test is drug-related
People v. Atwood (2003) 110 Cal.App.4th 805, to argue the People
must prove his reason for cashing the check was not drug-related. Atwood imposes no
such burden on the People. In Atwood, the probationer violated probation by missing an
appointment with his probation officer. Because the reason for the appointment was
unclear, the People could not show the probationer had violated a non-drug related
condition of probation; Atwood noted, for example, that if the appointment had been to
take a drug test, the violation would have been drug related. (Id. at pp. 808, 811-812,
citing In re Taylor, supra, 105 Cal.App.4th 1394.) Cashing a check allows for no such
possibility here. Even if Martinez had planned to buy drugs with the check proceeds, the
offense would not have been drug related as Proposition 36 defines that term. (Pen.
Code, § 1210.1, subd. (f) [drug-related condition of probation is a "specific drug
treatment regimen, employment, vocational training, educational programs,
psychological counseling, and family counseling."]; accord People v. Canty (2004) 32
Cal.4th 1266, 1279-1280, 1285 [driving under the influence does not satisfy
Proposition 36's definition of drug-related misdemeanor even if the intoxicant is a drug].)
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
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