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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FV I18001635 )
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 Attorney s Gene ral , for Plaintiff and Respondent.2 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 th is order on the grounds that , when the trial court issued i t , it mistakenly believed it was prohibited from consider ing 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. Th e record shows that the trial court was mistaken about the sco pe of its discretio n and should , therefore , be given the opportunity

to exercise its full discretion ary authority.

FACT UAL 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 Code 1 section s 273.5 , subdivision (a) and 273.6, subdivision (a), respectively. The charges had arisen from allegations tha t, while visiting his g irlfriend in violation of a restraining order, defendant

1 All further statutory references are to the Penal Code unless otherwise specified.3

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 sentenc e 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 Vickers 2 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 or der in question was issued a fter 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) res ts within the broad discretion of the trial court.” ( People v

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

2 People v

. Vickers (1972) 8 Cal.3d 451.4

“An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that des erves 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 c ontrary, 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
discret ion ” ( i bid ) ; “[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 jus tice 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 .)5

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 reinst ating ” 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 gran t ed 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.
A s 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 i t. Indeed, as the People point out, the trial court heard6

argument, reviewed the probat ion office’s recommendation, and considered defendant’s history of domestic violence with this particular victim

. These are not impermissible considerations; and secti on 1203.2 permits the court to revoke probation “if the interests of justice so require.” ( § 1203.2, subd. (a ).) The r e fore, these facts alone do not point to
an abuse of discretion. The problem is that the trial court did not simply decline to give weigh t to the nature of the probation violation : I t specifically expressed its belief that it was prohibited
from considering i t. The People argu e 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.4 th 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 :
T hat 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 scop e of its authority caused the court to abuse its discretion.7

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 appropriat e 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: T hat 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 h ad 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 re cord, emblematic of the trial court’s position on the nature of the violation. If anything , th e statement simply highlights the omission in the record that ha d been c reated by the court ’s misreading of
the confines of its discretion: D efendant tried to suggest that probation be reinstated8

because the violation that led to his Vickers hearing was minimal. The trial court refused
to “entertain” th is argument because it believed it was prohibited from doing so. The
record on this issue is therefore und eveloped , such that we c annot fairly predict what the
trial court would have decided had it considered the argument in full. In summary, t he record does not clearly indicate how the trial court would have
ruled had it known it could consider defendant’s ar gument 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 senten ce 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.