People v. Hattan CA6

Filed 9/22/21 P. v. Hattan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046904 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS170561)

v.

GARTH TODD HATTAN,

Defendant and Appellant.

Defendant Garth Hattan was granted probation with execution of a prison sentence suspended after pleading no contest to one count of possessing methamphetamine for sale and admitting a prior conviction. When he violated probation, the trial court ordered the prison sentence executed. Defendant contends the court abused its discretion by executing the sentence without considering whether to reinstate probation. He also contends he is entitled to retroactive application of ameliorative legislation that would reduce his sentence. We find no abuse of discretion in terminating defendant’s probation. He is, however, entitled to application of the later-enacted legislation. We will therefore order the judgment modified to strike the prior conviction enhancement, the narcotics offender registration requirement, and certain fees. We will affirm the judgment as modified. I. BACKGROUND Defendant pleaded no contest in 2017 to possessing methamphetamine for sale (Health & Saf. Code § 11378) and admitted a prior controlled substance conviction

(Health & Saf. Code § 11370.2, subd. (c)). Under a negotiated disposition, defendant was to be granted probation for three years with execution of a five-year prison term suspended (three years for the substantive offense and a consecutive two years for the prior conviction enhancement). Before defendant entered his plea, the trial court warned him, “And I want you to be clear, if you have any violation, any violation whatsoever, it is likely you will go to state prison. Very, very, very likely. Do you understand that?” The court further advised, “If you violate probation, you can expect to be sentenced [sic] to state prison for a period of five years on the first violation.” When defendant appeared for sentencing, consistent with the negotiated disposition he was granted probation with execution of a five-year prison term suspended. The trial court commented: “I do what I say and I say what I mean. If you violate, I’m sending you to state prison. It’s not even a close call.” About a year and a half later, defendant violated his probation by testing positive for methamphetamine and being arrested for using it. The district attorney petitioned for revocation of defendant’s probation. Defendant admitted the violation but argued probation should be reinstated because the violation was an isolated mistake for which he was remorseful. He submitted letters from community members expressing support for him. The probation department’s recommendation was to terminate probation and send defendant to prison, and the District Attorney asked the court to follow that recommendation. The trial court executed the suspended five-year prison term, telling defendant, “Sir, I agree with the People. In these kinds of cases, especially with an ESS, it’s likely you should have been sent to prison at the time of the original sentencing based on your criminal history. [¶] I no longer find you’re suitable for continued treatment on probation. Probation is revoked and terminated. [¶] The court imposes [sic] the previously suspended prison term of five years.”