Opinion
C080267
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GENE CONNER, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR91006)
Defendant Robert Gene Conner, Jr., contends the trial court abused its discretion by refusing to reinstate his probation. We conclude the trial court did not abuse its discretion. We note the trial court did not order defendant to pay the mandatory fine due upon revocation of probation. We modify the judgment to include this fine, affirm the judgment as modified, and direct the trial court to amend the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 2014, a complaint was filed charging defendant with two counts of felony theft: grand theft by fraudulent use of an access card or account information (count 1; Pen. Code, § 484g, subd. (a)) and grand theft of personal property from Tehama County Health Service Agency (count 2; § 487, subd. (a)).
Undesignated statutory references are to the Penal Code.
On August 11, 2014, the complaint was amended to add count 3, receipt of stolen property (§ 496). On the same date, defendant withdrew his not guilty plea and entered a plea of no contest to two of the three counts charged. In return, he was promised a suspended county jail sentence of three years eight months, five years of formal probation and 210 days in jail, and the dismissal of three other pending cases.
As to the substance of the plea, the written plea agreement and sentencing documents conflict with defendant's oral plea. The plea agreement, the sentencing minute order, and the order granting probation -- all signed by the trial court -- specify counts 1 and 3 (designated by statute number), and do not mention count 2. At the change of plea hearing, however, the court elicited defendant's pleas to counts 1 and 2 (also citing statute numbers), and did not mention count 3. As we explain below, this discrepancy went unnoticed until defendant filed for resentencing under section 1170.18.
The parties stipulated the factual basis for the plea could be found in "BI report 13-1023," which is not in the appellate record. The original complaint alleges as counts 1 and 2 that on or about September 17, 2013, to October 15, 2013, defendant fraudulently used an access card to take more than $950 of fuel from the property of Tehama County Health Service Agency.
The trial court imposed the agreed suspended sentence and order of probation. The court ordered fines and fees that included a $400 restitution fine (§ 1202.4, subd. (b)), a $400 suspended probation revocation restitution fine (§ 1202.44), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). The terms and conditions of probation included obeying all laws, making restitution to Tehama County Health Service Agency in the amount of $7,112, and successfully completing an alcohol and drug treatment program.
On March 27, 2015, defendant filed a petition for resentencing (§ 1170.18, subd. (a)) on the offenses named in counts 1 and 3 of the amended complaint. The People responded that defendant's offenses were ineligible for section 1170.18 resentencing.
At the hearing on defendant's petition, held on April 28, 2015, defense counsel conceded the amount that was taken far exceeded the $950 value for misdemeanor theft offenses. The court denied the petition on that basis.
At this hearing, the trial court also observed, according to the transcript of the change of plea hearing, defendant entered no contest pleas to counts 1 and 2 of the amended complaint, not to count 3. The court stated: "I think it has to be corrected so that he's convicted on the proper counts."
The minute order for this hearing states count 1 of the amended complaint was dismissed on August 11, 2014, (the date of defendant's entry of plea) and defendant was convicted by plea on counts 2 and 3. This statement is doubly erroneous: it contradicts the other documents we have mentioned as to count 1, and the trial court did not dismiss any count on August 11, 2014.
On May 4, 2015, the probation department filed a petition to revoke defendant's probation, alleging that on February 25, 2015, defendant was discharged from his drug and alcohol counseling program for nonattendance, and on March 27, 2015, defendant vandalized a dumpster and unlawfully possessed pepper spray. The petition stated defendant stood convicted of "grand theft" and possession of stolen property.
On May 27, 2015, the trial court ordered the order of probation and the petition to revoke probation amended to show the correct counts.
On June 4, 2015, the probation department filed an amended petition to revoke probation, stating defendant stood convicted of grand theft and "grand theft by embezzlement" (corresponding to counts 1 and 2 of the complaint). The petition recommended reinstating defendant's probation.
On June 15, 2015, defendant admitted the alleged probation violations. The trial court revoked defendant's probation and referred the matter to the probation department to prepare a disposition report.
The disposition report, filed July 8, 2015, also recommended reinstating defendant's probation.
The report noted defendant's behavior on probation had been poor: not only had he committed the alleged violations, but he had been arrested multiple times in the past six months, had made no payments toward his fines and fees, and had stopped reporting to a parenting class in which he was enrolled through the probation department. The report also noted defendant had been convicted of nine misdemeanors before the felonies charged in this case.
The report stated defendant claimed he had relapsed and begun using methamphetamine again, but he knew he could get clean again because he had done so 14 years before. He wanted to get his children back and had been going to his drug counseling classes and parenting classes until his relapse. He wanted to be a good example for his children and would like another chance on probation. Under "Criteria Affecting Probation" (Cal. Rules of Court, rule 4.414), the report stated:
Undesignated rule references are to the California Rules of Court.
"(a)(1) The circumstances of the offense do not widely differ from other instances of similar crimes.
"(a)(2) The defendant was not armed.
"(a)(3) The victim was not particularly vulnerable.
"(a)(4) The defendant did not inflict any physical injury.
"(a)(5) The victim suffered a monetary loss totaling . . . ($7,112.00).
"(a)(6) The defendant was the sole participant.
"(a)(7) The crime was not committed because of unusual circumstances.
"(a)(8) The defendant demonstrated little criminal sophistication.
"(a)(9) The defendant did not take advantage of a position of trust.
"(b)(1) The defendant has nine prior misdemeanor convictions which indicates a pattern of regular criminal conduct.
"(b)(2) The defendant's previous performance on probation has been satisfactory.
"(b)(3) The defendant said he would comply with the terms of probation.
"(b)(4) The defendant's age, education, health, and other listed factors do not argue against his ability to comply with the reasonable terms of probation.
Defendant was 55 years old.
"(b)(5) The defendant has a [15-year-]old daughter and a [16-]year-]old son who may be affected by his imprisonment. His daughter is currently in a group home through the Tehama County Probation Department. His son was also in the home but has since absconded and has an active warrant for his arrest.
"(b)(6) This is the defendant's first felony conviction. It carries the normal adverse consequences associated with a felony conviction, including loss of firearm rights and loss of employment opportunities.
"(b)(7) The defendant expressed some remorse.
"(b)(8) The defendant does not appear to pose a serious threat if not incarcerated."
Under "Circumstances in Aggravation," the report listed: "The defendant has numerous convictions." (Rule 4.421(b)(2).) Under "Circumstances in Mitigation," the report listed: "The defendant's prior performance on probation and parole was satisfactory." (Rule 4.423(b)(6).)
The report recommended reinstating probation because (1) this was defendant's first violation in this matter; (2) he was "putting in effort shortly after his grant of probation but began using methamphetamine again when his children were placed in group homes"; and (3) he "now knows the importance of completing his counseling programs and staying clean while he is on probation."
At the hearing on the petition to revoke probation, held on July 13, 2015, the prosecutor asked the trial court to impose the previously suspended sentence. The prosecutor asserted defendant was 55 years old and had "approximately 13 prior convictions, mostly misdemeanors now due to Prop[osition] 47; however, one of them was a DUI with injury back in 1992." When defendant received a suspended sentence of three years eight months, "usually that's the court's way of saying this is the last chance and no violations will be tolerated." His probation violations were not merely technical; he had broken the law more than once and had failed in the treatment program he was offered.
Defense counsel asserted defendant was "working on outside meetings as well as drug and alcohol [treatment]." He had been homeless "nearly the entire time." He had "made efforts to contact probation and had been in contact with them since before his arrest in this case." His problems in attending meetings stemmed from his homelessness and lack of dependable transportation.
After reciting some of the criteria affecting probation (ending with an enumeration of defendant's priors), the trial court ruled defendant "doesn't appear to be a candidate for probation, so I'm denying reinstatement of probation."
The trial court imposed the previously suspended county jail term, consisting of three years for grand theft (count 1) and eight months consecutive for "grand theft embezzlement" (count 2). The court awarded defendant 261 days of presentence custody credit (131 actual days and 130 conduct days).
The sentencing minute order states count 3 was dismissed on August 11, 2014. In other words, it repeats the erroneous statement from the April 28, 2015, minute order that the trial court formally dismissed a count when defendant entered his plea, but "corrects" the statement by substituting count 3 for count 1.
The court ordered defendant to pay "the fines and fees indicated in the probation report." The report listed the following fines and fees: a $400 restitution fine (§ 1202.4, subd. (b)) originally ordered on August 11, 2014; a $400 restitution fine (§ 1202.44) originally stayed from August 11, 2014; a $36 theft fine (§ 1202.5, subd. (a)); a $40 court operations assessment (§ 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); and victim restitution in the amount of $7,112.
DISCUSSION
I
Refusal to Reinstate Probation
Defendant contends the trial court abused its discretion by not reinstating his probation. We conclude there was no abuse of discretion.
A sentencing court has broad discretion in determining whether to grant or deny probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157.) We review the trial court's decision whether to reinstate probation for abuse of discretion, and will not interfere with the court's exercise of discretion if the court has considered all facts bearing on the offense and the offender and has not acted arbitrarily or capriciously. (People v. Downey (2000) 82 Cal.App.4th 899, 909-910; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) A defendant's previous failures to comply with his or her terms of probation can suffice to justify revoking probation. (People v. Jones (1990) 224 Cal.App.3d 1309, 1316 [trial court's finding probation "not appropriate" can be sufficient].)
Here, defendant's admitted violations of probation included both a new crime and a failure to attend the substance abuse treatment program the trial court deemed necessary to successful completion of probation. The court expressly noted the long prior record that preceded the present offenses. Finally, the court could have reasonably concluded defendant's relapse into methamphetamine use did not bode well for his future ability to comply with probation. Under the circumstances, the court's refusal to reinstate probation was not arbitrary or capricious.
Defendant asserts: "There are multiple factors in mitigation which compelled the reinstatement of probation." Defendant cites no authority holding any factor in mitigation compels the reinstatement of probation, and we know of none.
Defendant cites the probation officer's recommendation. But trial courts are not required to follow such recommendations. (People v. Hernandez (1980) 111 Cal.App.3d 888, 898.) Here, the probation report contained both positive and negative criteria and aggravating and mitigating circumstances for the trial court's consideration. The trial court stated it considered the criteria affecting probation before making its ruling. On this record, the trial court did not abuse its discretion when it declined to follow the probation officer's recommendation.
Defendant asserts his prior and current crimes were minor, nonviolent, and mostly theft or drug offenses, and that "he remained crime-free for extended periods of time during the past 27 years." These assertions, by themselves, do not show an abuse of discretion because there are other facts that must be considered, including defendant's criminal record that includes thefts, possession of drugs, and a DUI causing bodily injury, his recent relapse and use of methamphetamine, lack of income and employment, and homelessness.
Lastly, defendant asserts his violations of probation were "minor and non-violent in nature as well." Defendant's failure to attend the court-ordered substance abuse program is not a minor violation. His related relapse into methamphetamine use illustrates the serious nature of the violation. In any event, these violations, however characterized, were sufficient grounds in themselves to revoke probation. (People v. Jones, supra, 224 Cal.App.3d at p. 1316.)
Defendant has shown no abuse of discretion in the trial court's order revoking probation and imposing the previously suspended sentence.
II
Mandatory Fine
As noted, the trial court ordered defendant to pay "the fines and fees indicated in the probation report." Instead of remanding this matter to the trial court to specify the fines and fees as required under People v. High (2004) 119 Cal.App.4th 1192, 1200-1201, we will modify the judgment and amend the abstract of judgment to reflect the mandatory fine now due upon revocation of defendant's probation.
The trial court revoked probation and ordered defendant to pay the fines and fees in the probation report. While the probation report listed the previously imposed but suspended $400 probation revocation restitution fine (§ 1202.44), the abstract of judgment does not include this fine and instead includes a $400 restitution fine (§ 1202.4(b)) and a $400 suspended parole revocation restitution fine (§ 1202.45).
We modify the judgment to impose the $400 probation revocation restitution fine now due under section 1202.44. The abstract of judgment must be amended to: (1) include this $400 probation revocation restitution fine due under section 1202.44, probation having been revoked and (2) remove the $400 restitution fine under section 1202.4, subdivision (b) and the $400 suspended parole revocation restitution fine under section 1202.45.
DISPOSITION
The judgment is modified to order defendant to pay the $400 probation revocation restitution fine now due under Penal Code section 1202.44. The judgment is affirmed as modified.
The trial court is directed to prepare an amended abstract of judgment removing the Penal Code sections 1202.4, subdivision (b) and 1202.45 restitution fines and adding the Penal Code section 1202.44 restitution fine and to furnish a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.