People v. White CA3 ( 2022 )

Filed 12/13/22 P. v. White CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C095162
Plaintiff and Respondent, (Super. Ct. Nos. P19CRF0065,
P20CRF0564)
v.
COREY ROBERT WHITE,
Defendant and Appellant.
The trial court placed defendant Corey Robert White on probation following his
no contest plea to willful infliction of corporal injury on a dating partner. Defendant later
admitted he violated probation, and the court terminated his probation as unsuccessful.
In a second domestic violence case, defendant pleaded no contest and was placed on
probation.
1
Subsequently, the trial court found defendant committed petty theft by taking the
victim’s cell phone and wiping its content, and concluded he violated probation in both
earlier cases. The court purported to reinstate probation in both cases (including the
previously terminated grant of probation) and to add a 60-day term in county jail as a
condition of the terminated grant of probation.
On appeal, defendant argues the trial court’s finding of petty theft was not
supported by any evidence showing he intended to permanently deprive the victim of her
cell phone. Further, the parties agree (as do we) that the court exceeded its authority in
adding a 60-day jail term as a probation condition to the previously terminated grant of
probation.
As we will explain, we will reverse the orders at issue and remand the matter for
the trial court to restate the terms and conditions of the remaining (valid) grant of
probation.
BACKGROUND
The substantive facts underlying defendant’s offenses are irrelevant to our
disposition and are therefore not recounted. We summarize the procedural background
below.
Case No. P19CRF0065 (Case No. 65)
On August 27, 2019, defendant pleaded no contest to one count of misdemeanor
willful infliction of corporal injury upon his dating partner. (Pen. Code, § 273.5, subd.
(a).)1 On the same day, the trial court placed defendant on four years of summary
probation.
On January 8, 2021, defendant admitted he violated probation, and the trial court
terminated probation as unsuccessful on the same day.
1 Further undesignated statutory references are to the Penal Code.
2
Case No. P20CRF0564 (Case No. 64)
On January 8, 2021, defendant pleaded no contest to one count of felony willful
infliction of corporal injury upon his dating partner following a previous domestic
violence conviction (§ 273.5, subd. (f)(1)), and admitted a prior domestic violence
conviction. On the same day, the trial court placed defendant on five years of formal
probation and ordered him to serve 180 days in jail with 137 days of credit. The
conditions of probation included, among other things, that defendant obey all laws.
Subsequent Proceedings
The People filed petitions for revocation of probation in both cases on August 31,
2021, alleging defendant committed petty theft. (§ 484, subd. (a).) On November 3,
2021, the trial court sustained the People’s allegations in the petitions and found
defendant in violation of his probation in both case No. 65 and case No. 64. On the same
day, the court reinstated defendant on probation with all of the original terms in both
cases, and purported to modify the terms of probation in case No. 65, ordering defendant
to serve 60 days in county jail.
Defendant timely appealed in case No. 65; we granted his motion to construe the
notice of appeal to include the judgment in case No. 64 on March 9, 2022. After delays
for receipt of the supplemental record and extensions sought by the parties for their
briefing, the case was fully briefed on October 25, 2022. The parties waived argument
and the matter was deemed submitted on December 12, 2022.
DISCUSSION
I
Insufficient Evidence - Petty Theft
Defendant contends there was insufficient evidence showing he intended to
permanently deprive the victim of her cell phone. We disagree.
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A. Additional Background
At the probation violation hearing on November 3, 2021, Deputy Berch Parker
testified that he was dispatched to investigate a petty theft report by N.T., who
complained defendant took her cell phone. Defendant told Parker that he mistook N.T.’s
cell phone as his when he left N.T.’s house two weeks prior. After realizing the cell
phone belonged to N.T., defendant wiped its contents to “get back at” N.T. At the time
Parker spoke to defendant, defendant had yet to return the cell phone to N.T. Based on
this testimony, the trial court found defendant committed petty theft in that he had failed
to obey all laws while on probation.
B. Analysis
Theft “requires a taking with intent to steal the property—that is, the intent to
permanently deprive the owner of its possession.” (People v. Page (2017) 3 Cal.5th
1175, 1182; accord, People v. Bullard (2020) 9 Cal.5th 94, 99.) “[A]n intent to take the
property for so extended a period as to deprive the owner of a major portion of its value
or enjoyment” satisfies the intent requirement for theft. (People v. Avery (2002)
27 Cal.4th 49, 55.) In other words, “ ‘the intent to deprive an owner of the main value of
his property is equivalent to the intent to permanently deprive an owner of property.’ ”
(Id. at p. 57; accord, People v. Zangari (2001) 89 Cal.App.4th 1436, 1443.)
The trial court has broad discretion in determining whether to revoke probation.
(§ 1203.2, subd. (a); People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The facts
supporting the revocation of probation must be proven only by a preponderance of the
evidence (Rodriguez, at p. 447), and we review the decision to revoke probation for abuse
of discretion (People v. Angus (1980) 114 Cal.App.3d 973, 988).
Here, we find no abuse of discretion. The main value of modern cell phones lies
in the information they store, from medical records and financial information to private
photos and correspondence with loved ones. (See People v. Appleton (2016)
245 Cal.App.4th 717, 725.) As the United States Supreme Court observed, “modern cell
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phones . . . are now such a pervasive and insistent part of daily life that the proverbial
visitor from Mars might conclude they were an important feature of human anatomy.”
(Riley v. California (2014) 573 U.S. 373, 385.) These cell phones are “ ‘practical
necessities of modern life,’ ‘fundamental tools for participating in many forms of
modern-day activity,’ and ‘not just another technological convenience.’ ” (Frlekin v.
Apple Inc. (2020) 8 Cal.5th 1038, 1055.)
As we have explained, defendant took N.T.’s cell phone from her house. After
realizing the cellphone belonged to her, he wiped its contents rather than return it to her,
thus intending to permanently deprive N.T. of the primary value of her cell phone. When
Deputy Parker questioned defendant, the cell phone had already been in defendant’s
possession for two weeks. N.T. had been deprived of the phone and its contents and
abilities for that time period and, as to the phone’s contents, permanently. Defendant
fully understood the gravity of his action in wiping the phone rather than returning it
immediately, as he articulated that he wiped N.T.’s phone to “get back at” her.
Accordingly, the trial court did not abuse its discretion in finding defendant violated
probation by committing petty theft.
II
Modification of Probation
Defendant claims, and the People agree, that the trial court exceeded its authority
when it added a 60-day jail term as a condition of probation in case No. 65, because the
trial court had already terminated probation in that case. However, the parties disagree as
to the appropriate remedy. Defendant urges us to apply the 60 days of credit from case
No. 65 to case No. 64, while the People contend remand is appropriate for the trial court
to restate the terms and conditions of probation in case No. 64. As we next explain, we
shall do the latter.
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The trial court has authority to modify or terminate probation at any time during
the term of probation and discharge the probationer. (§ 1203.3, subd. (a).) But once a
defendant’s probation term is terminated, a trial court loses jurisdiction to modify the
defendant’s probation conditions. (Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726,
733; see Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 776 [a court cannot award
additional restitution after probationary term expires]; see also In re Rashad D. (2021)
63 Cal.App.5th 156, 164 [a court “has no jurisdiction to conduct further hearings in [a]
. . . closed case”].) “An unauthorized sentence may be corrected at any time by a court
with jurisdiction.” (People v. Cabrera (2018) 21 Cal.App.5th 470, 477.)
Here, the trial court terminated probation in case No. 65 on January 8, 2021, and
therefore lost jurisdiction to modify the terms of probation in that case as of the
termination. Nevertheless, the court purported to reinstate probation in case No. 65 on
November 3, 2021, and modified the condition of probation to include 60 days in county
jail. This was error, and we must reverse the order at issue in case No. 65.
It is unclear from the record whether defendant has already served the 60-day term
in county jail. It is further unclear whether the trial court would have imposed the same
probation conditions in case No. 64 had it known it lacked jurisdiction to modify the
probation conditions in case No. 65. We therefore reverse both orders and remand the
matter for the trial court to restate the probation terms and conditions in case No. 64.
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DISPOSITION
The orders from which defendant appeals are reversed and case No. P20CRF0564
is remanded to the trial court with directions to restate the probation terms and conditions
in case No. P20CRF0564. The judgments are affirmed in all other respects.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Boulware Eurie, J.
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