1

Filed 8/30/24 P. v. John C A3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LUCAS ANTHONY JOHN,

Defendant and Appellant. C098524

(Super. Ct. No. P20CRF0069)

Defendant Lucas Anthony John appeals the trial court’s revocation of his

probation and lifting o f the suspension of execution o n his previously imposed aggregate

13

- year prison sentence. John challenges the sufficiency of the evidence supporting

some, but not all

, of his probation violations. He also argues the suspended sentence had

not actually been imposed by the Orange County S uperior C ourt and that the El Dorado

County Superior Court judge sentencing him misunderstood her sentencing discretion.

We will affirm.2 FACTUAL AND PROCEDURAL BACKGROUND

In July 2019, a jury convicted John in Orange County case No. 17NF3607 of first

degree residential burglary ( Pen. Code, §§ 459, 460, subd. (a)) 1 in which nonaccomplices

were present (§ 667.5, subd. (c)(21)) (the b urglary case)

. He later admitted he had

suffered a prison prior ( § 667.5, subd. (b) ), a prior serious felony conviction ( § 667, subd.

(a)(1) ), and a prior strike (§§ 667, subds. (d), (e)(1), 1170.12, subd s . (b), (c)(1)) in this

same case.

On September 27, 2019 , the trial court sentenced John to an aggregate prison term

of 13 years in the b urglary case

, comprised of the midterm of four year s , doubled to eight

years because of the prior strike, plus five years for the prior serious felony conviction.

The court struck the prison prior and suspended execution of John ’s sentence, placing

him on five years ’ felony probation under specified terms and conditions, including

following the directives of his probation off ic er and obey ing the law

. In January 2020, the b urglary case was transferred to El Dorado County.

On June 11, 2021, the El Dorado County D istrict A ttorney filed a probation

revocation petition (the June 11 petition) alleging John violated the probation condition

that he obey all laws by committing violations of Business and Professions Code sections

7028, subdivision (a) and 7027.1 subdivision (a) on February 12, 2020.

Later, t he El Dorado County P robation D epartment filed a probation revocation

petition alleging new violations, which was amended on November 17, 2022

, (the

November 17 petition) to allege five violations of probation

. Specifically: (1) John

violated his probation by failing to obey all laws by committing assault with a deadly

weapon (§ 245, subd. (a)(1); violation I); (2) John failed to report to the probation officer

as directed (violation II); (3) John absconded and his whereabouts were unknown

1 Undesignated statutory references are to the Penal Code.3

(violation III); (4) John committed battery on a spouse (§ 243, subd. (e)(1) ) and was

placed on diversion after conditionally pleading no contest to violating that section, as

well as section 415, subd ivision (a) (violation IV); and (5) John left the state of California

without permission (violation V).

A contested probation violation hearing took place on March 10, 2023

, to resolve

the allegation s of the June 11 petition and the November 17 petition. At the outset, the

court took judicial notice that John ’s terms of probation included “that he was ordered to

obey all laws” and that “[i]n addition, he was required to report to Probation as ordered as

well as notify them of his current residence and whereabouts.”

As relevant to the June 11 petition, the People presented the testimony of Bryce

Allwardt, a special investigator on the statewide fraud team for the Department of

Consumer Affairs Contractors State License Board. Allwardt participated in a sting

operation on February 12, 2020, loo king for people bidding or doing work without a

license. Specifically, Allwardt “obtained some information alleg ing that Mr. John was

advertising to perform some seal coating type of work” and got his phone number from

the Nextdoor application. Allwardt called John , confirmed he did seal coating work, and

made an appointment with John to bid the project. Allwardt then met John at the sting

address where John provided a business card that failed to identify whether he was a

licensed contractor as required by law. Allwardt told John he wanted the entire driveway

seal coated, and John offered to complete the work for $800. John ’s identity was later

confirmed with his driver’s license

, and Allwardt confirmed that John was the person he

had met with. 2 A ccording to Allwardt, s eal coating work must be done by a licensed

2 On cross

- examination, Allwardt said he was between 90 and 95 percent certain

John was the person he had met with. However, after refreshing his recollection on redirect by looking at John ’s CalPhoto from his report, Allwardt unequivocally identified

John

.4

contractor if the work performed costs more than $500. A search of the Contractors State

Licens e Board database reflected that John had never been granted a license within the

State of California.

As to the November 17 petition, the People withdrew alleged violation s I and V

. The People then presented the testimony of Stephanie Clark, John ’s probation officer in

El Dorado County

, who had been supervising him in the high risk unit since March 2020.

On April 26, 2022, John was arrested in Los Angeles County; he was released the same

day and called Clark to explain what had happened. Clark directed John to report to

probation on April 29 at 2 :00 p.m., but John failed to appear or call Clark to explain his

absence. John also stopped using the “ SCRAM touch point ” application to check in daily

with his GPS location, and his whereabouts were unknown until he was arrested. Prior to

April 2022, he had been compliant with probation , aside from concerns surrounding hi s

frequent mov es in and out of the county.

Finally, the People presented e xhibit No. 1 , a minute order from the Los Angeles

County Superior Court that the People represented as showing that on “October 31st of

2022, Mr. John entered a plea to a violation of Penal Code section 415, which was

amended from the original charge of a 243(e)(1).” John ’s attorney had no object ion to

the admission of this exhibit, and the trial court admitted it after noting “it looks like a

three

- page minute order from L.A. County. It’s in Case 2GD00756.” People’s e xhibi t

No. 1 is not part of the record in this appeal.

John’s counsel argued he was on probation with a suspended sentence, but should

be allowed to continue on probation with some local time due to the de minimis nature of

his violations. The People opposed this request, arguing the Business and Professions

Code violations were of the same character of conduct that had led to his conviction in

the b urglary case and that the trial court should revoke probation and lift the suspension

on John ’s 13

- year sentence. Clark then relayed without objection that John r eported

conflicting marital and relationship status information to the probation officer preparing5

the presentencing report as compared with information provided to his supervising

probation officer

. Following a recess to consider the evidence, the trial court found John violated his

probation as alleged in the June 11 petition and that the People had also established the

remaining three allegations from the November 17 petition. As to the violation supported

by e xhibit No. 1, the trial court found John “failed to obey all laws pursuant to the plea

that was entered in Los Angeles County Case Number 2GD00756. It appears that the

plea was entered on October 31st, 2022, and it was entered as to two separate C ounts

. One, a misdemeanor violation of Penal Code Section 243(e)(1) and then also Penal Code

Section 415(1).” John did not object.

Moving on to sentencing , t he trial court noted the suspended 13

- year prison

sentence imposed by the Orange County Superior C ourt, as well as the timing of John ’s

various violations of probation, ultimately concluding that because Orange County

Superior Court had suspended the execution of the prison sentence it imposed, the court

could not modify that sentence upon revocation . Accordingly, the court lifted th e

suspension, allowing John ’s prison sentence to go into effect.

John timely appealed.

DISCUSSION

A. The Revocation of John ’s Probation

John challenges the sufficiency of the evidence supporting the trial court’s

determination that he violated his probation by violating two sections of the Business and

Professions Code, as well as two sections of the Penal Code. John ’s briefing fails to

acknowledge that he was also found to have violated his probation for not reporting to

probation as directed and by absconding on April 29, 2022. Putting aside the issue of

prejudice in light of this failure, we conclude John has failed to demonstrate erro r.6

“ Section 1203.2, subdivision (a), authorizes a court to revoke probation if the

interests of justice so require and the court, in its judgment, has reason to believe that the

person has violated any of the conditions of his or her probation. (See People v.

Rodriguez (1990) 51 Cal.3d 437, 447 ( Rodriguez ).) ‘ “ When the evidence shows that a

defendant has not complied with the terms of probation, the order of probation may be

revoked at any time during the probationary period. [Citations.] ” [Citation.] ’ [C itation.]

The standard of proof in a probation revocation proceeding is proof by a preponderance

of the evidence. ( Rodriguez

, supra , 51 Cal.3d at p. 447; [citation] .) ‘ Probation

revocation proceedings are not a part of a criminal prosecution, and the trial court has

broad discretion in determining whether the probationer has violated probation. ’

[Citation.] ” ( People v. Urke (2011) 197 Cal.App.4th 766, 772

, f n. omitted ( Urke ) .)

We review the trial court’s revocation of probation for an abuse of discretion,

while factual findings made by the trial court when revoking probation are reviewed for

substantial evidence. ( Urke

, supra , 197 Cal.App.4th at p. 773.) “ [G] reat deference is

accorded the trial court ’ s decision, bearing in mind that ‘ [p]robation is not a matter of

right but an act of clemency, the granting and revocation of which are entirely within the

sound discretion of the trial court. ’ ” ( Ibid .)

“ ‘ The discretion of the court to revoke probation is analogous to its power to

grant the probation, and the court ’ s discretion will not be disturbed in the absence of a

showing of abusive or arbitrary action. [Citations.] ’ [Citation.]

. . . [Citation.] ‘ “ [O]nly

in a very extreme case should an appellate court interfere with the discretion of the trial

court in the matter of denying or revoking probation

. . . . ” ’ ( [ People v. ] Rodriguez

,

supra , 51 Cal.3d at p. 443.) ” ( Urke

, supra , 197 Cal.App.4th at p. 773.) The d efendant

maintains the burden of showing the trial court abused its discretion. ( Ibid

. )

Here

, John challenges whether the testimony of Allwardt established the Business

and Professions C ode violations. We begin by highlight ing that John ’s failure to raise

any evidentiary objections to Allwardt’s testimony has forfeited any such issues on7

appeal. (Evid. Code, § 353, subd. (a); People v. Booker (2011) 51 Cal. 4th 141, 170.)

Accordingly, it was incumbent upon John to show Allwardt’s testimony as a whole did

not establish violations of Business and Professions C ode sections 7028 and 7027.1.

( Urke

, supra , 197 Cal.App.4th at p. 773.) He has not done so.

Business and Professions Code section 7027.1 proscribes advertising “for

construction or work of improvement .

. . unless that person holds a valid license.” (Bus.

& Prof. Code, § 7027.1, subd. (a).) Included within the definition of advertising is the

issuance of a business card. ( Id ., subd. (b).) Further, Business and Professions Code

section 7028 prohibits an individual from engaging in business as a contractor without a

license. (Bus. & Prof. Code, § 7028.) Contractor s include individuals who subm it a bid

on a project to improve “any .

. . road, parking facility .

. . or other structure” (Bus. &

Prof. Code, § 7026)

, as well as individuals who submit bids for any “home improvement

project.” (Bus. & Prof. Code, § 7026 .1 .) Notwithstanding these provisions, an individual

may advertise for improvement work under this chapter provided the aggregate cost of

the project is less than $500. (Bus. & Prof. Code, § 7027.2.)

Thus, Allwardt’s testimony that John bid $800 to perform the seal coating

improvement project for the sting house driveway, that seal coating work in excess of

$500 required a license, and that John did not have any license and provided a business

card is substantial evidence supporting the trial court’s determination that John violated

his probation condition that he obey all laws by violating Business and Professions Code

sections 7027.1 and 7028. 3

3 John ’s challenge to Allwardt’s identification of John at trial ignores that Allwardt

was 90 to 95 percent certain John was the individual who had made the bid at the sting house and that Allwardt later removed any qualification on his identification of John . A probation violation need only be established by a preponderance of the evidence

. ( People

v. Rodriguez

, supra , 51 Cal.3d at p. 447 .)8

John also challenges the sufficiency of the evidence that he violated sections 415

and 243, subdivision (e)(1). The trial court’s findings that John violated his probation

condition that he obey the law by violating these provisions of the Penal Code were

supported by a minute order that is not part of the record on appeal, but which was

admitted into evidence without objection. While the People’s des cription of this minute

order only reflects a no contest plea to the section 415 violation, the trial cour t described

this document as r eflect ing pleas to violations “of Penal Code Section 243(e)(1) and then

also Penal Code Section 415(1).” Having not produced the document on appeal to show

it reflects otherwise, we find these descriptions of the minute order constitute substantial

evidence that John did plead no contest to violating both provisions of the Penal Code in

contravention of the requirement that he obey the law.

B. The Lifting of the Suspension on John ’s Sentence

Finally, John challenges his sentence

, argu ing the Orange County S uperior C ourt

never actually imposed the 13

- year prison sentence and that the El Dorado County

Superior Court judge sentencing him misunderstood her sentencing discretion. We

disagree.

The record of the Orange County Superior Court’s sentence is important in this

regard. The trial court indicates the following: “I’ll select the midterm on Count 1 and

with the 667(d) prior, the strike prior, that would be

— the midterm would be eight years,

which is the midterm of four years double d . So it will be ei ght years, which is the

midterm on Count 1, plus the five

- year prior 667(a), for a total of 13 years. [¶] I’ll strike

the 667(b) prior and execution of that sentence is suspended and I’ll place you on five

years of supervised probation with the following terms: [¶] .

. . [¶] And you understand,

sir, that is the sentence, the 13 years in State Prison. You were on parole when this

occurred. You have a serious felony prior. You have numerous priors. So I’m giving you

a shot to stay out of prison by placing you on probation, by suspending the execution of9

that sentence. But should you violate the terms of that probation, you are already

sentenced to 13 years in prison. So if you come back here with a violation, I’m just going

to go ahead and impose that execution I suspended. ”

Given the state of the record, that the Orange County Superior Court did not use

the word “impose” in meting out its sentence is of no consequence. The Orange County

S uperior Court unequivocally imposed the 13

- year aggregate prison sentence prior to

suspend ing execution of that sentence and plac ing John on five years ’ formal probation.

The El Dorado County Superior Court judge recognized this, stating, “And the language

was specific, it was that the court actually sentenced Mr. John to 13 years in state p rison

and it was only the execution of that sentence that was suspended. .

. . [I] t wasn’t

imposition of sentence was stayed pending successful completion of probation. It was

the sentence was imposed and only the execution is suspended.” That John was subject

to th e suspended prison sentence was also acknowledged by his counsel at the probation

revocation hearing, whe rein he requested local prison time with continued supervision

rather than finding his violations worthy of a prison sentence.

Moreover, John has failed to show the El Dorado County Superior Court judge

misunderstood the scope of her sentencing discretion at the probation revocation hearing.

Rather, the judge correctly stated she could not modify the suspended sentence once she

rendered a decision to revoke John ’s probation. ( See People v. Martinez (2015)

240 Cal.App.4th 1006, 1017 [“ w hen, as here, a lawful sentence is imposed but execution

thereof is suspended and the defendant is placed on probation, the exact sentence must be

ordered executed if probation is subsequently revoked ” ] .) Thus, because the court found

John had not complied with probation and elected to revoke the probation grant, the trial

court acted in accordance with the law when it lifted the suspension o f execution o n

John ’s 13

- year prison sentence

. ( Ibid

. ; see also id

. at p. 1012 [“ The trial court is without

jurisdi ction to modify or change a final judgment and is required to order into execution

that judgment after revocation of probation ”]. )10

At oral argument, John relied on People v

. Howard (199 7 ) 16 Cal.4 th 1081 to

argue that the trial court had discretion to reinstate probation, thereby providing an

avenue for imposition of a custodial sentence lower than the previously suspended

sentence of 13 years in prison. We agree that the trial court retained the discretion to

reinstate probation and modify the conditions thereof accordingly, including imposing a

condition of confinement other than a prison term.

“ A probation violation does not automatically call for revocation of probation and

imprisonment. ( People v. Hawthorne (1991) 226 Cal.App.3d 789, 795.) A court may

modify, revoke, or terminate the defendant ’ s probation upon finding the defendant has

violated probation. (§ 1203.2, subds. (a), (b)(1).) The power to modify probation

necessarily includes the power to reinstate probation. ( People v. Medina (2001)

89 Cal.App.4th 318, 321; Hawthorne, supra , 226 Cal.App.3d at p. 795.) ” ( People v.

Bolian (2014) 231 Cal.App.4th 1415, 1420.)

However, this is not the end of our inquiry. I f, as happened here, the trial court

decides to terminate probation and declines to reinstate it

, the sentence on termination is

determined by examin ing the manner in which the court origin ally sentenced the

defendant

. “If the court originally suspended imposition of sentence, the court may, upon

revocation and termination of probation, ‘ pronounce judgment for any time within the

longest period for which the person might have been sentenced. ’ (§ 1203.2, subd. (c).)

But if the court originally imposed a sentence and suspended execution of it, upon

revocation and termination of probation, the court must order that imposed sentence into

effect. ( People v. Howard [

, supra , 16 Cal.4th at pp. ] 1088, 1095.) The court ordinarily

has no authority to impose a lesser sentence in such a case. ( Howard, supra , at p. 1095.) ”

( People v. Bolian

, supra , 231 Cal. App. 4th at pp. 1420

- 1421

, fn. omitted

. )

John further argued that the record in this case reflects the trial court’s

misunderstanding of this distinction, and therefore a misunderstanding of its discretion.

John fails to persuade

. At the sentencing hearing on the violation of probation, trial11

counsel asked the court to exercise its discretion to “not view this as a prison violation,”

and reminded the trial court that “The court does have the discretion to not sentence Mr.

John to prison, to sentence Mr. John to local time .” The prosecutor, in urging the trial

court to execute the suspended sentence, focused on John’s prior criminal history and his

poor performance on probation. The prosecution also reminded the trial court of its

d iscretion to reinstate probation, thereby fashioning a new sent ence that did not include

the 13

- year prison term ; “So I think that his conduct in and of itself shows that he is not

amenable to another chance on probation and I believe the Court has enough evidence to

find him in violation of the multiple allegations .” Although the prosecutor continued by

telling the court that “ at that point in time, the only legal option is to impose or execute

that suspended 13

- year prison sentence

, ” the previous statement regarding John’s

amenability to continued probation assumed the court could choose that as an option but

that if it instead chose not to reinstate probation, there was only one sentencing option

.
The trial court then proceeded to find John in violation of probation, revoke probation

,

and execute the original, stayed sentence. In doing so the trial court stated: “ [G] etting

back to the original sentence that was imposed by the Orange County court. And the

language was specific, it was that the court actually sentenced Mr . John to 13 years in

state prison and it was only the execution of that sentence that was suspended.” “Again,

that is important language because this Court, pursuant to the finding in case law, one

that I was able to find on such short notice was People v

. Colorado [ sic ] . It’s a 1995 case

at 32 Cal

. App.4 th 260. In that case, along with multiple others, is that once an individual

is found in violation of their probation and probation is revoked, the Court has no other

option, but to lif

t the execution

— or excuse me

— to immediately execute that sentence

that has been suspended. This Court is without the ability to modify, which means this

Court also cannot impose a greater sentence on Mr. John. Instead, this Court is bound by

the sentence that has been imposed and o nly its execution has been stayed pending

successful completion of his probation.”12

“ Generally, when the record shows that the trial court proceeded with sentencing

on the erroneous assumption it lacked discretion, remand is necessary so that the trial

court may have the opportunity to exercise its sentencing discretion at a new sentencing

hearing. (See People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 530, fn. 13;

People v. Myers (1983) 148 Cal.App.3d 699, 704.) Defendants are entitled to ‘ sentencing

decisions made in the exercise of the “ informed discretion ” of the sentencing court, ’ and

a court that is unaware of its discretionary authority cannot exercise its informed

discretion. ( People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) [¶] Remand for

resentencing is not required, however, if the record demonstrates the trial court was

aware of its sentencing discretion. ( People v. Belmontes, supra , 34 Cal.3d at p. 348,

fn. 8; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Further, remand is

unnecessary if the record is silent concerning whether the trial court misunderstood its

sentencing discretion. Error may not be presumed from a silent record. ( People v. White

Eagle, supra , 48 Cal.App.4th at p. 1523.) ” ( People v. Brown (2007) 147 Cal.App.4th

1213, 1228

- 1229

. )

Here, the record discloses that the litigants actively discussed the trial court’s

discretion to reinstate probation, but argued against it with the exception of the defense

attorney, who asked for “local time ”

— an option only available with continued

probation. Thus, the trial court was reminded that it had the option of reinstating

probation and fashioning a new sentence, including “local time.” But if it chose not to do

so, and declined to reinstate probation, the court was required to impose the very sentence

that had been previously s uspended

. We presume the trial court was aware of and

followed the applicable law

. “ ‘ [A] trial court is presumed to have been aware of and

followed the applicable law’ ” ( People v. Martinez (1998) 65 Cal.App.4th 1511, 1517)

,

and John has failed to convince us that the trial court’s comments in isolation signal

otherwise.13 DISPOSITION

The judgment is affirmed.

/s/ EARL, P. J.

We concur:

/s/ DUARTE, J.

/s/ KRAUSE, J.