Filed 7/2/14 P. v. Ochoa CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
JESUS VAZQUEZ OCHOA,
Defendant and Appellant. B244844
(Los Angeles County Super. Ct. No. BA380304)

APPEAL from an order of the Superi or Court of Los Angeles County, Craig Richman, Judge. Reversed in part and affirmed in part.

Sylvia Koryn, 

### under appointment by the Court of Appeal , for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Ta ryle and Pamela C. Hamanaka, Deputy Attorneys Genera l, for Plaintiff and Respondent.2 Defendant and appellant Jesu s Vazquez Ochoa contends the trial court erred by summarily revoking his probati on absent a showing of willful violation, and the record must be corrected to accurately reflect the suspended senten ce imposed. We agree with
both contentions. We therefore reverse the court’s order summarily revoking probation and deem the eight-year four-m onth sentence noted in the court’s minute order to be

correct. FACTUAL AND PROCEDUR AL BACKGROUND
1. Plea and grant of probation. A complaint filed on January 24, 2011 charged Ochoa with two counts of the
manufacture or sale of a counterfeit ma rk (Pen. Code, § 350, subd. (a)(2), 1 and seven
counts of manufacture or sale of a counterfe it mark with a prior (§ 350, subds. (a)(1), (b)). According to a probation report, polic e serving search warrants on January 13, 2011, discovered counterfeit Chanel, Louis Vuitton, Burberry, Coach, Gucci, Juicy Couture, Fendi, and Jimmy Choo handbags, wallets, and shoes at two businesses
connected to Ochoa. In a negotiated disposition, on Februa ry 10, 2011 Ochoa pleaded guilty as charged. In exchange, the trial court imposed a suspended sentence and placed Ochoa on five years formal probation. It imposed a variety of probation co nditions, including that Ochoa: (1) pay a restitution fine; (2) “mai ntain residence as appr oved by the probation officer”; (3) “cooperate with the probation offi cer in a plan for probation;” (4) “obey all rules and regulations of the pr obation department;” and (5) “[k]eep [the] probation officer advised of your residence at all times.” Th e court’s minute order also stated: “If you leave the country, do not reente r the United States illegally. If you do return, report to the probation officer within 48 Hours and presen t documentation which proves you are in the United States legally.” (U nderlining in original.)

1 All further undesignated statutor y references are to the Penal Code.3 2. Revocation of probation and de nial of coram nobis petition. In October 2012, the probation depart ment requested Ochoa’s probation be modified to a “grant without supervision” in light of the fact he had been “deported to Mexico” on August 24, 2012. The probation report explained: “Defendant’s wife called the probation department to report that defe ndant had been deported and she was the one making the payments towards th e financial obligation. On 09/18/2012 a call was made to Immigration Customs and Enforc ement . . . [and] it was veri fied that the [immigration] court granted voluntary depart ure on 08/24/2012.” The report noted that Ochoa had paid all but $16.70 on a $220 fine ordered in the case. On October 24, 2012, Ochoa’s counsel ap peared before the court regarding the probation department’s request. Counsel stated that Ochoa had “been apparently deported,” and observed that the probation department was requesting that his probation be converted to nonsupervised. The trial cour t stated: “I have r eceived notification from the probation department that Mr. Ochoa . . . was deported to Mexico on August 24th, 2012. Based upon the report, I will revoke probation and issue a bench warrant.” The next day, Ochoa’s counsel filed a petition for a writ of error coram nobis, seeking reconsideration of th e probation revocation order. Ochoa argued that revocation was improper because neither the probation department nor the district attorney had moved to revoke probation, and in any even t, there was no eviden ce establishing Ochoa had willfully violated the terms of his prob ation. The trial court denied the motion, explaining, “[defense counsel] has now filed a 30-page writ of error . . . saying that . . . the probation department, who I could ca re less what they recommend, did not recommend his probation be revoked. They actually recommend[ed] it be converted to summary probation. And then the [d]istrict [a]ttorney didn’t ask that Mr. Ochoa’s probation be revoked. And then it says, ‘nor [did] the court move[ ] to revoke Mr. Ochoa’s probation.’ I thought I did move to revoke his probation. I did in fact revoke his probation.” The court continued: “I would agree with you to a certain extent that Mr. Ochoa, by being deported , is not in violation of his probation, and if Mr. Ochoa notified probation within 48 hours of his deportation, letting probation know where he4 was in Mexico, which is a condition of his probation, and I assume he did not do that
, and then if Mr. Ochoa does in fact return or when he returns to the United States––not if—he reports to probation with in 72 hours, he also would not be in violation of his probation. Then probation would be reinstat ed nunc pro tunc. But I am well within the law at this point in time to revoke his probation and issue a no bail bench warrant. [¶] Your motion is denied.” (Italics added.) When defense counsel asked if he could be heard, the trial court replied, “No.” Ochoa appeals. 2

DISCUSSION
1. Revocation of probation. A court may summarily revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation . . . officer or otherwise that the person has viol ated any of the conditions of his or her [probation] . . . .” (§§ 1203.2, subd. (a); see 1203.3, subd. (a); People v. Leiva (2013) 56 Cal.4th 498, 504; People v. Galvan (2007) 155 Cal.Ap p.4th 978, 981; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) We a pply the substantial evidence standard when reviewing a trial court’s findi ng of a probation violation. ( People v. Urke (2011) 197 Cal.App.4th 766, 773.) The facts suppor ting revocation of probation may be proved by a preponderance of the evidence. ( People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. Galvan, supra, at p. 982; People v. Kelly (2007) 154 Cal.App. 4th 961, 965.) The evidence must support a conclusion th at the probationer’s conduct constituted a
willful violation of the terms and conditions of probation. ( People v. Moore (2012) 211 Cal.App.4th 1179, 1186 [“a tr ial court may not revoke probation unless the defendant willfully violated the terms a nd conditions of probation”]; People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan, supra, at p. 982; People v. Zaring (1992)

2 It is not entirely clear whether Ochoa purports to appeal from the denial of his coram nobis petition, or from the order revoking probation. In the interests of judicial economy, we construe his appeal as bei ng from the order revoking probation.5 8 Cal.App.4th 362, 375-379; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1129;
In re Victor L. (2010) 182 Cal.App.4th 902, 913.) “Where a probationer is unable to comply with a proba tion condition because of circumstan ces beyond his or her control
and defendant’s conduct was not contumac ious, revoking probation and imposing a prison term are reversible error.” ( People v. Cervantes, supra, at p. 295.) Trial courts have great discretion in deciding whet her or not to revoke probation. ( People v. Kelly,

supra, at p. 965; People v. Galvan, supra, at pp. 981-982.) Ab sent abuse of that discretion, we will not disturb the trial court’s decision. ( People v. Kelly, supra, at p. 965.)

a. Dismissal of Ochoa’s appeal. The Attorney General first argues that Ochoa’s appeal should be dismissed because he is no longer within the court’s control, given the fact he has been deported. This argument is meritless. “ ‘That the court . . . has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.’ [Citation]. The fugitive disentitlement doctrine dates back
to 1880 in California with People v. Redinger (1880) 55 Cal. 290 . . . , in which the Supreme Court dismissed an esca ped defendant’s appeal because ‘[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the pers on charged, so that its judgment might be made effective.’ ” ( Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 531; People v. Puluc-Sique (2010) 182 Cal.A pp.4th 894, 896; People v. Kubby (2002) 97 Cal.App.4th 619, 622-623.) However, the record here does not establish that Ochoa is a fug itive from justice. As explained in People v. Puluc-Sique, supra, 182 Cal.App.4th 894: “[T]he People ask us to extend the appellate disentitlement doc trine to a defendant who has been deported from this country by United St ates Immigration and Customs Enforcement (ICE). . . . [A]bsent additional circumstances not presente d here, a defendant who has been deported
does not stand in the same shoes as one w ho has voluntarily placed himself beyond the court’s control. We therefore deny the motion to dismiss the appeal.” ( Id. at p. 896.)6 “Defendant is not a fugitive from justice, but was deported from th e country by ICE. Though deportation might interfe re with one’s ability to comp ly with the conditions of probation, a defendant who has been involuntarily deporte d has not willfully flouted the
court’s orders in the same sense as one who has escaped custody or fled from the
authorities. Consideration of an appeal by such a defe ndant does not threaten the integrity of the judicial system. Appellate disentitlement is, fundamentally, a doctrine based on forfeiture: a defendant who escapes or otherwise flees the authorities gives up the right to challenge a conviction or sentence while refusing to abide by its consequences. [Citation.] Absent some a dditional wrongful conduct by the defendant amounting to forfeiture of the ri ght to challenge a judgment, deportation does not, in and of itself, warrant the dismissal of a pending appeal.” ( Id. at p. 898.)
As in Puluc-Sique, and unlike in the cases cited by the Attorney General ( People v. Redinger, supra, 55 Cal. 290; People v. Fuhr (1926) 198 Cal. 593; People v. Clark (1926) 198 Cal. 453; People v. Kubby, supra, 97 Cal.App.4th at p. 619; Polanski v. Superior Court, supra, 180 Cal.App.4th 507) , Ochoa has not esca ped from custody or otherwise absconded. Nor, unlike in People v. Brych (1988) 203 Cal.App.3d 1068, does the record suggest Ochoa has fa iled to cooperate with his a ttorney, purposefully hidden his whereabouts, or otherwise used his ab sence for any particular advantage. ( People v. Puluc-Sique, supra, 182 Cal.App.4th at p. 898.) People v. Villa (2009) 45 Cal.4th 1063, is also inapposite, as that case concerned th e ability of a defendant who was not in actual or constructive state custody to petiti on for a writ of habeas corpus. ( Id. at pp. 1072, 1075.) As we discuss post, Ochoa’s departure from Californ ia was not voluntary in the sense the Attorney Gene ral suggests. Dismissal is not required.
b. Failure to hold full revocation hearing. Ochoa argues that the trial court erred by revoking probation without conducting formal revocation proceedings, including a hear ing at which he could confront and crossexamine adverse witnesses. (See In re Wagner (2005) 127 Cal.App.4th 138, 146.) However, the trial court appears to have summarily revoked Ochoa’s probation; the
record before us does not reflect a formal revocation or imposition of sentence. The7 court’s minute order states, “The court finds the defendant preliminarily in violation of probation.” As one court has explained: “Over the ye ars, California courts have adopted the practice in probation violation cases of revoking probation first and asking questions later. Thus, in the typical case probation is preliminarily revo ked based on the trial court’s finding of probable cause to belie ve the person has violated the terms of probation. Following this summary revo cation the person is entitled to a formal revocation hearing within a reas onable time at which he is entitled to the assistance of counsel, the opportunity to confront and cr oss-examine adverse witnesses, present his own witnesses and testify on his own behalf.” ( In re Mehdizadeh (2003) 105 Cal.App.4th 995, 999-1000, fns. omitted.) Th e summary revocation of probation “ ‘gives the court jurisdiction over and physical cu stody of the defendant and is proper if the defendant is accorded a subseq uent formal hearing in conf ormance with due process. [Citation.] [¶] Therefore, after the summa ry revocation, the de fendant is entitled to formal proceedings for probation revocation.’ ” ( People v. Leiva, supra, 56 Cal.4th at p. 505; People v. Freidt (2013) 222 Cal.App. 4th 16, 21-22.) Beca use the trial court summarily revoked probation, th ere was no error in failing to hold a formal revocation hearing at this stage. More over, the hearing could not tran spire while Ochoa was absent. (See People v. Leiva
, supra , at p. 519 (conc. opn. of Baxter, J.).)

c. The trial court’s revocation or der was an abuse of discretion. Ochoa argues there was no evidence before the trial court that he willfully violated probation, and therefore the court’s summary revocation was an abuse of discretion. We

agree. As we and other courts ha ve held, a defendant’s failure to appear for a probation hearing due to his or her immigration stat us does not constitute a willful probation
violation. In Cervantes, for example, the defendant was unable to appear for a 30-day probation review hearing becau se he was in the custody of immigration authorities. Under these circumstances, he was not in violation of probation. ( People v. Cervantes,

supra, 175 Cal.App.4th at p. 293.) Cervantes explained: “Where a probationer is unable8 to comply with a probation condition because of circumstances beyond his or her control
and defendant’s conduct was not contumac ious, revoking probation and imposing a prison term are reversible error.” ( Id. at p. 295.)
In Galvan, the defendant was required to (1) re port to his probation officer within 24 hours of his release from jail, and (2) if he left the Unite d States, to report to the probation officer within 24 hours after re turning and present doc umentation proving he was legally in the country. ( People v. Galvan, supra, 155 Cal.App.4th at pp. 980-981.) After his release from jail, Galvan was deported to Mexico and was subsequently arrested in the United States. He never contacted his probation officer. ( Id. at p. 982.) We held
that the trial court abused its discreti on by revoking Galvan’s probation. ( Id . at pp. 980, 983-984.) It was impossible for Galvan to personally report to the probation officer
within 24 hours of his releas e from jail, because he had be en deported; therefore his failure to report was not willful. ( Id . at pp. 983, 984.) As fo r his failure to report to probation within 24 hours of reentry into the United States, the record contained no evidence showing how long he had been back in the Unite d States before his arrest. Thus, there was no evidentiary basis fo r revoking probation on that ground. ( Id. at pp. 982-983; see generally People v. Leiva, supra, 56 Cal.4th at p. 517.) 3 Similarly, here, the mere fact Ochoa volu ntarily departed the United States in lieu of deportation does not establish a willful vi olation of probation. Indeed, when ruling on the coram nobis petition the day after summar ily revoking probation, the trial court stated, “I would agree with you to a certain extent that Mr. Ochoa, by being deported, is
not in violation of hi s probation . . . .” Contrary to the Attorney General’s position, the

3 In contrast, People v. Campos (1988) 198 Cal.App.3d 917 held that a “defendant who is deported while on proba tion may be found in violation of that probation for failure to report to the probation department althou gh his deportation makes it impossible for the defendant to fulfill this cond ition of his probation.” ( Id . at p. 923.) In Galvan, we declined to follow Campos, noting that the opinion failed to explain “how a failure to report in the deportation situ ation could be willful.” ( People v. Galvan, supra, 155 Cal.App.4th at p. 985, fn. 4; see also People v. Cervantes, supra, 175 Cal.App.4th at pp. 295-297.)9 fact Ochoa opted for a “volunt ary departure,” apparently pur suant to title 8 of the United States Code section 1229c(a), does not estab lish he willfully left California. Section 1229c(a) of the United States Code provides that under ce rtain conditions, an alien may accept voluntary departure in lieu of deportation. 4 “Voluntary departure is a discretionary form of relief that allows certain favored aliens—either before the conclusion of removal proceedings or after being found deportable—to leave the country willingly.” ( Dada v. Mukasey (2008) 554 U.S. 1, 8.) Voluntary departure may be advantageous to an alien: “ ‘An alien in the United States become s subject to exclusion only if actually deported; some deportable pers ons who agree to depart the United States at their own expense may have available a voluntary departure remedy not entailing exclusion from reentry.’ [Citation.]” ( People v. Bautista (2004) 115 Cal.App.4th 229, 237, fn. 5; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 18 3, 208.) Thus, while Ochoa’s departure was voluntary in the sense th at he opted for voluntary departure rather than deportation, this does not show willful ness. Given that immigration officials had begun proceedings to remove him from the c ountry one way or another, Ochoa was not at liberty to stay in California. Moreover, even if Ochoa had voluntarily le ft the United States, the record before us does not suggest this would have been a vi olation of the terms of his probation. The probation conditions provided: “If you leave the country, do not reenter the United States illegally. If you do return, re port to the probation officer within 48 Hours and present documentation which proves you are in the Un ited States legally.” (Underlining in original.) The conditional “if” language suggests Ochoa was not forbidden by the

4 Title 8 of the United States Code secti on 1229c(a)(1) provides in pertinent part: “The Attorney General may permit an alien volun tarily to depart the United States at the alien’s own expense under this subsection, in lieu of being subject to proceedings under section 1229a of this title or prior to the co mpletion of such proceed ings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title.”10 conditions of probation to leave the country. He cannot be faulted for failing to follow a
condition that did not exist. The Attorney General argue s that by going to Mexico, Ochoa also violated the terms of his probation requiring that he cooperate with the pr obation officer in formulating a probation plan, maintain an approved residence, and obey the probation department’s rules and regulati ons. Based on the record befo re us, there is no evidence Ochoa’s departure violated any of these terms. The probation department did not allege Ochoa had failed to do any of these things. The trial court initially based its order re voking probation on the report that Ochoa had been deported without specif ying any further reason. At the subsequent hearing the court added that advising the probation depart ment of his whereabouts in Mexico after deportation was “a condition of his probation, and I assume he did not do that . . . .” But an assumption is not evidence. While a trier of fact can make reasonable inferences from the evidence, nothing in the reco rd suggested Ochoa failed to fulfill this requirement in a timely manner. To the contrary, the probation re port stated that Ochoa’s wife had, on an unspecified date, alerted the probation department to Oc hoa’s deportation. There is no evidence the wife’s call was untimely, that sh e failed to provide his address, or that Ochoa was required to personally call, as opp osed to having a family member in the United States relay the inform ation to the probation depart ment. Indeed, the fact the probation department did not re quest Ochoa be found in viol ation of probation suggests the opposite. ( See generally People v. Galvan, supra, 155 Cal.App.4th at pp. 982-983 [where the record contained no evidence that defendant failed to report to probation within 24 hours of reentry in to the United States, there wa s “no evidentiary basis for revoking probation on that ground”].) U nder these circumstances, there was no
substantial evidence that Ochoa violated a te rm of probation, and the summary revocation
was an abuse of discretion.
2. Correction of the record. After Ochoa pleaded guilty to counts 1, 2, 3, 5, 7, 9, 11, 13, a nd 15, the trial court orally sentenced him to “high term nine ye ars state prison, execution suspended.” The11 court’s more detailed nunc pro tunc minute or der states that it sentenced Ochoa to the high term of three years on count 1, and co nsecutive terms of eight months, or one-third of the midterm, on the remaining eight counts, for a total of eight years four months. Ochoa requests that, because the trial court’s erroneous nine-year calc ulation contained in the reporter’s transcript could cause an increas e in his sentence in the future, we should correct it. The Attorney Ge neral agrees that the nine -year term is erroneous. We agree with the parties. As a general rule, when the record of the court’s oral pronouncement regarding sentencing conflicts with the clerk’s minute order, the oral pronouncement controls. ( People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v.
Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment is not the judgment of
conviction and does not control if different fro m the trial court’s oral judgment, and may not add to or modify the judg ment it purports to summarize]; People v. Price (2004) 120 Cal.App.4th 224, 242 [“ Any discrepancy between th e minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from th at recorded in the minutes”].) This rule is not absolute, howe ver. “ ‘[W]hether the recitals in the clerk’s minutes should prevail as against contrary st atements in the reporter’s transcript, must depend upon the circumstances of each particular case.’ [Citations.]” ( People v. Smith (1983) 33 Cal.3d 596, 599; see People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423 [“When a clerk’s transcript conflicts with a reporter’s transcript, the question of which of the two contro ls is determined by
consideration of the circ umstances of each case”].) Here, because counts 2, 3, 5, 7, 9 11, 13, and 15 were subordi nate, the court should have imposed one-third the midterm, or 8 months, on each. (§ 1170.1, subd. (a).) Therefore, the correct suspende d term is, as the parties ave r, eight years four months. “Under the circumstances, we will deem the minute order . . . to prevail over the reporter’s transcript. [Citations .] The erroneous st atement in the reporter’s transcript is of no effect.” ( People v. Cleveland, supra, 32 Cal.4th at p. 768.)12 DISPOSITION The order summarily revoking Ochoa’s pr obation is reversed. The nunc pro tunc minute order dated February 3, 2011 is deemed to state the correct suspended sentence of eight years four months. In all othe r respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.