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Filed 2/15/24 P. v. Pineda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO DANIEL PINEDA, JR., 

Defendant and Appellant.

E081270

(Super. Ct. No. FVI18001635)

OPINION

APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Reversed with directions.

Matthew A. Lopas, by appointment of the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. 

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION

Defendant and appellant Mario Daniel Pineda, Jr., was ordered to serve a 

previously suspended sentence of four years in state prison after violating the terms of his 

probation. He now appeals this order on the grounds that, when the trial court issued it, it 

mistakenly believed it was prohibited from considering the nature of his probation 

violation. He argues that, by relying on a misunderstanding of the law when it decided to 

terminate his probation, the trial court abused its discretion.

The People argue that the trial court did not abuse its discretion because it was not 

required to consider the nature of the probation violation; and that, regardless of whether 

the trial court committed error, there was no prejudice to defendant because the trial court 

would have terminated his probation anyway. Thus, according to the People, reversal is 

unnecessary.

We conclude that reversal is warranted. The record shows that the trial court was 

mistaken about the scope of its discretion and should, therefore, be given the opportunity 

to exercise its full discretionary authority.

FACTUAL AND PROCEDURAL HISTORY

In 2022 defendant pled no contest to one count of domestic violence and one count 

of violating a domestic violence restraining order under Penal Code1sections 273.5, 

subdivision (a) and 273.6, subdivision (a), respectively. The charges had arisen from 

allegations that, while visiting his girlfriend in violation of a restraining order, defendant 

1 All further statutory references are to the Penal Code unless otherwise specified.
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struck her in the face and smothered her with an article of clothing. At the time of the 

incident, defendant and his girlfriend shared two children, and his girlfriend was pregnant 

with their third child.

After entering his guilty plea, the trial court sentenced defendant to the upper term 

of four years in state prison, but suspended the execution of the prison sentence pending 

defendant’s successful completion of probation. However, less than six months after the 

trial court granted probation, defendant was accused of violating its terms by failing to 

perform his monthly check-in with his probation officer and failing to inform his 

probation officer of a change in residence. Defendant’s whereabouts were unknown; and 

he did not respond to his probation officer’s contact attempts. He was eventually taken 

into custody, after which the trial court held a Vickers2 hearing. The trial court found that 

defendant had violated his probation and decided to terminate probation and execute the 

suspended prison sentence. Defendant has timely appealed this order.

DISCUSSION

A. STANDARD OF REVIEW

The order in question was issued after a Vickers hearing, i.e., a hearing on a 

motion to modify, revoke, or terminate a defendant’s probation. (§ 1203.2, subd. (b)(1).) 

“The decision whether to reinstate probation or terminate probation (and thus send the 

defendant to prison) rests within the broad discretion of the trial court.” (People v.

Bolian (2014) 231 Cal.App.4th 1415, 1421 (Bolian).)

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 People v. Vickers (1972) 8 Cal.3d 451.
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“An abuse of discretion occurs when the trial court, for example, is unaware of its 

discretion, fails to consider a relevant factor that deserves significant weight, gives 

significant weight to an irrelevant or impermissible factor, or makes a decision so 

arbitrary or irrational that no reasonable person could agree with it.” (In re White (2020) 

9 Cal.5th 455, 470.) “Absent evidence to the contrary, we presume that the trial court 

knew and applied the governing law.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390

(Gutierrez).)

However, “when the record indicates the court misunderstood or was unaware of 

the scope of its discretionary powers, we should remand to allow the court to properly 

exercise its discretion.” (Bolian, supra, 231 Cal.App.4th at p. 1421.) This is distinct 

from when the record “is merely silent on whether the court misunderstood its sentencing 

discretion” (ibid); “[e]rror may not be presumed from a silent record” (People v. Brown

(2007) 147 Cal.App.4th 1213, 1229).

B. THE APPLICABLE SCOPE OF THE COURT’S DISCRETION

A trial court may “revoke and terminate” a defendant’s probation “if the interests 

of justice so require and the court, in its judgment, has reason to believe from the report 

of the probation or parole officer or otherwise that the person has violated any of the 

conditions of their supervision . . . .” (§ 1203.2, subd. (a).) Its discretion, however, “is 

not strictly limited to the grounds specified” in this statute. (People v. Pinon (1973) 35 

Cal.App.3d 120, 124.)
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Furthermore, California Rules of Court, rule 4.435, specifically states that, when 

“deciding whether to permanently revoke supervision, the judge may consider the nature 

of the violation and the defendant’s past performance on supervision.” (Cal. Rules of 

Court, rule 4.435(a).)

Here, the trial court found at defendant’s Vickers hearing that defendant had 

violated the terms of his probation. It then gave defendant leave to argue “whether or not 

to reinstate probation based on the facts of the instant case, or to sentence defendant to 

the suspended sentence.” Defendant began by asking the court to “consider reinstating” 

probation because his violation was “minimal.” However, the court interrupted 

defendant to state, “As you are aware, the Court cannot consider the nature of the 

[probation] violation. I have to consider the facts of the instant case on whether or not he 

should be granted probation or sentenced to the suspended sentence.” The context of this 

exchange indicates that, by “instant case,” the trial court was referring to the underlying 

domestic violence convictions.

As defendant has asserted, this was a clear misstatement of the law because the 

trial court can consider the nature of the probation violation. This is explicitly stated in 

the California Rules of Court. Thus, the record affirmatively shows that the court was 

operating under a misapprehension of the scope of its discretion.

The People do not dispute that the court may consider the nature of the probation 

violation. They instead argue that this was not an abuse of discretion because the trial 

court was not required to consider it. Indeed, as the People point out, the trial court heard 
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argument, reviewed the probation office’s recommendation, and considered defendant’s 

history of domestic violence with this particular victim. These are not impermissible 

considerations; and section 1203.2 permits the court to revoke probation “if the interests 

of justice so require.” (§ 1203.2, subd. (a).) Therefore, these facts alone do not point to 

an abuse of discretion.

The problem is that the trial court did not simply decline to give weight to the 

nature of the probation violation: It specifically expressed its belief that it was prohibited 

from considering it. The People argue that the trial court actually meant to convey that it 

“would not” consider the nature of the violation, given the court’s discussion of the other 

facts of the case. But this argument is entirely conjectural. As in Bolian, “a fair reading 

of the court’s comments demonstrates it was not aware of its discretionary power . . . .”

(Bolian, supra, 231 Cal.App.4th at p. 1422.) Here the court explicitly stated it “cannot

consider the nature of the violation[,]” not that it “would” not consider it. A fair reading 

of this comment starts with the presumption that the court meant exactly what it said: 

That it believed it was forbidden from giving any weight to the nature of the probation 

violation. That the trial court then considered the factors it did believe it had the 

authority to weigh is congruent with this interpretation of the court’s words. We see no 

reason to second guess what the court explicitly told us.

The record affirmatively shows that the trial court erroneously believed it was 

prohibited from considering the nature of defendant’s probation violation. This 

misunderstanding of the scope of its authority caused the court to abuse its discretion.
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C. REMAND IS APPROPRIATE

The Supreme Court has held that when “the record before us affirmatively 

indicates the trial judge [misunderstood] the scope of his sentencing discretion” and 

“nothing in the record excludes the possibility the judge might have exercised his 

discretion in defendant’s favor[,]” the appropriate remedy is to remand for resentencing 

“to give the trial court an opportunity to exercise its discretion . . . .” (People v. 

Rodriguez (1998) 17 Cal.4th 253, 257-259, superseded by statute on other grounds.) For 

the reviewing court to affirm in spite of a finding that the trial court misunderstood its

discretion, the record would need to “clearly indicate that [the trial court] would have 

imposed the same sentence had they been aware of the full scope of their discretion.” 

(Gutierrez, supra, 58 Cal.4th at p. 1391.)

This is what the People argue in the alternative: That even if the trial court abused 

its discretion, remand is unnecessary because “the record clearly indicates that the court 

would have reached the same conclusion even if the court had explicitly considered the 

nature of the probation violation.” They argue that the trial court had signaled its “firm 

position that it would not reinstate probation” when it stated, “ ‘I’ll be glad to entertain 

any facts you have to suggest to the Court that this would be a probation case.’ ”

We do not find this statement, or anything else in the record, emblematic of the 

trial court’s position on the nature of the violation. If anything, the statement simply

highlights the omission in the record that had been created by the court’s misreading of

the confines of its discretion: Defendant tried to suggest that probation be reinstated 
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because the violation that led to his Vickers hearing was minimal. The trial court refused 

to “entertain” this argument because it believed it was prohibited from doing so. The 

record on this issue is therefore undeveloped, such that we cannot fairly predict what the 

trial court would have decided had it considered the argument in full.

In summary, the record does not clearly indicate how the trial court would have 

ruled had it known it could consider defendant’s argument about the nature of the 

probation violation. Therefore, remand is warranted to permit the court to exercise the 

full extent of its discretion.

DISPOSITION

The judgment revoking and terminating defendant’s probation is reversed. 

Defendant’s sentence is vacated, and the matter is remanded to the trial court with 

directions to exercise its discretion whether to reinstate probation (either on the same 

terms or on modified terms) or terminate probation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.