Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. NA061524.Mark C. Kim, Judge.
William A. Bartz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Haman aka, Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
The trial court revoked probation and imposed appellant Kenneth L. Leach’s previously suspended state prison sentence. On appeal, he contends that (1) there was insufficient evidence that he violated probation, and (2) the court should not have increased the amount of his restitution and parole revocation restitution fines when it revoked probation. We find merit only in the second contention. We order the appropriate modification regarding the fines and otherwise affirm.
PROCEDURAL HISTORY AND FACTS
On June 25, 2004, appellant pled no contest to petty theft with a prior conviction for a theft-related offense (Pen. Code, § 666). The plea included a three-year suspended prison sentence, three years of formal probation, 48 days in jail, and credit for 48 days already spent in jail. The court imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b) and a parole revocation restitution fine of $200 pursuant to section 1202.45.
Subsequent code references are to the Penal Code unless otherwise stated.
In October 2005, the probation officer informed the court that appellant had missed a number of scheduled appointments and was behind in paying his financial obligations. Probation was revoked and a bench warrant issued after appellant failed to appear in court. He was picked up on the bench warrant in November 2005. In December 2005, he admitted the violation. Probation was reinstated on the same terms, plus 90 days in county jail.
In early January 2007, the probation officer informed the court that appellant had made no payments on his financial obligations since July 2005, had picked up a new case involving possession of burglary tools, and continued to miss scheduled appointments. Probation was revoked and a bench warrant was issued when appellant failed to appear in court.
On January 19, 2007, the bench warrant was recalled, probation was reinstated, and a supplemental probation report was ordered. Appellant was released on his own recognizance, with an order to return on February 26, 2007.
On February 16, 2007, the probation officer filed a report that detailed appellant’s problems with failing to appear for scheduled appointments.
On February 26, 2007, appellant failed to appear in court, a bench warrant issued, and probation was revoked.
On April 24, 2007, the bench warrant was recalled and the matter was scheduled for a probation violation hearing.
At the violation hearing on May 22, 2007, the court heard testimony from a police officer and the probation officer.
The police officer testified that he saw appellant sitting in a car outside an apartment complex at 2:30 a.m. on December 12, 2006. In the front seat area of the car, there were objects commonly used by burglars, including a set of pliers, a flashlight, and gloves.
The probation officer described various times since March 2006 when appellant missed appointments, showed up late, or appeared on the wrong day. Sometimes when he showed up at the wrong time or on the wrong day, his appointments were rescheduled or he met with the officer of the day, as his own probation officer was not available. His probation officer advised him that it was important to appear promptly for scheduled appointments. His problem with appointments made it very difficult to supervise him. He also made no payments on his restitution obligation after July 2005. He met with a financial evaluator but did not bring the paperwork that was needed to determine his ability to pay.
The court took judicial notice that appellant was released on his own recognizance on January 19, 2007, and a bench warrant issued on February 26, 2007, when he failed to appear. It found him in violation of probation for three separate reasons: (1) He was in the area of the apartment building around 2:30 a.m. with burglary tools. (2) He did not comply with the conditions of probation, as he did not report as instructed to the probation officer. (3) He failed to comply with a court order, when he failed to appear after being released on his own recognizance. It revoked probation and sentenced appellant to the previously suspended high term of three years in prison, with appropriate conduct credits. It also ordered him to pay a $600 restitution fine and a $600 parole revocation restitution fine.
DISCUSSION
1. Sufficiency of the Evidence
Appellant contends there was insufficient evidence that he violated the terms of his probation.
“Pursuant to Penal Code section 1203.2, subdivision (a) . . ., a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation. . . .’” (People v. Rodriguez (1990) 51 Cal.3d 437, 440.) The facts must be proven by a preponderance of the evidence. (Id. at p. 441.) An order of revocation will not be reversed on appeal unless the probationer establishes an abuse of discretion. (Id. at p. 442.)
The trial court found that appellant was in violation of probation because he illegally possessed burglary tools, missed appointments with his probation officer, and failed to appear in court after being released on his own recognizance. Appellant’s briefing focuses on whether there was sufficient evidence that he violated section 466, possession of burglary tools with intent to feloniously break into a building. We need not address that issue because the second and third grounds on which the trial court relied were sufficient to justify revocation of probation. The probation reports and testimony of the probation officer amply showed that appellant missed numerous scheduled appointments with the probation officer. The record also shows that, as the trial court found, appellant failed to appear in court after being released on his own recognizance. We therefore find no abuse of discretion in the revocation of probation.
Section 466 provides in pertinent part: “Every person having upon him . . . in his . . . possession [specified tools] with intent feloniously to break or enter into any building . . . is guilty of a misdemeanor.”
2. The Fines
At the time of the plea, the court imposed a restitution fine of $200 and a parole revocation restitution fine of $200. When it revoked probation, it changed the amount of both fines to $600 without explanation.
Appellant argues that the court should not have increased the restitution fine and parole revocation restitution fines when it revoked probation. He is correct, as respondent concedes. (People v. Garcia (2007) 147 Cal.App.4th 913, 917.)
Appellant also asks us to reduce the restitution fine from $200 to $130, to reflect the $70 he paid before probation was revoked. Respondent counters that there is no authority for reducing the fine in that manner, and our doing so “could lead to confusion as to the total amount” that appellant must pay.
The probation report of February 15, 2007, provides this information about what appellant paid before probation was revoked: “He has paid $70 dollars towards his financial obligation of $290 dollars. The restitution fine is $200 dollars; the service charge is $20 dollars; the court security fee is $20 dollars; and the service charge is $50 dollars. His last payment was for $10 dollars on 7/22/05.”
The record therefore shows that appellant paid $70 toward his total financial obligation, but he owed more than the $200 restitution fine.
“[A] restitution fine imposed as a condition of probation survives a subsequent revocation and state prison commitment. [Citation.] Defendant is either entitled to credit for its payment or is responsible for paying it during and, if necessary, after his prison sentence.” (People v. Arata (2004) 118 Cal.App.4th 195, 203.)
To avoid any confusion, we reduce the restitution fine to the $200 that the court originally imposed, and specify that appellant will be awarded $70 in credit for the payments he already made, off of his total financial obligation.
DISPOSITION
The trial court is ordered to strike the $600 restitution fine imposed pursuant to section 1202.4, subdivision (b), and reinstate the original restitution fine of $200 that was imposed at defendant’s sentencing in 2004. Appellant’s total financial obligation shall be reduced by the $70 he paid prior to revocation of probation. In addition, the trial court is ordered to strike the $600 parole revocation restitution fine imposed under section 1202.45, and impose a parole revocation restitution fine of $200. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.