Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur Jean, Judge. Los Angeles County Super. Ct. No. NA066097
Tara K. Allen, 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. Hamanaka, Assistant Attorney General, Keith H. Borjon and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Toby Atkins (appellant) appeals from the judgment entered following a probation revocation hearing after he had previously pled no contest to assault by means of force likely to produce great bodily injury; admitted that he had inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)); and was granted probation. After finding a violation of probation, the trial court sentenced him to seven years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that (1) the trial court erred when it imposed a $200 restitution fine at sentencing after revocation of probation, and (2) there is Blakely-Cunningham error (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)).
After the case was originally briefed, on August 1, 2007, this court directed the parties to serve and file supplemental briefing in light of the recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Following that order, appellant submitted no new briefing, and the cause was submitted when the time for briefing had expired.
We affirm the judgment.
THE FACTS
On June 14, 2005, appellant was charged by information with inflicting corporal injury on a spouse or a coinhabitant within the meaning of section 273.5. The probation report disclosed that on June 11, 2005, S.D., appellant’s girlfriend, reported that appellant, her boyfriend of four months, had assaulted her. S.D. told the police officers that while appellant was riding in the car with her, he elbowed her in the right rib cage. She stopped the car, and he punched her on the lower lip. Appellant had been drinking alcoholic beverages and assaulted her in front of her children.
On June 28, 2005, appellant entered a plea of no contest to assault by means of force likely to produce great bodily injury to an amended count 2. The trial court suspended imposition of sentence and granted probation. The terms and conditions of the probation included that appellant pay a section 1202.4, subdivision (b), restitution fine in the amount of $200.
On November 22, 2005, the trial court received a probation report indicating that appellant was in violation of the terms and conditions of probation. The trial court preliminarily revoked probation and issued a no-bail bench warrant.
On April 20, 2006, after appellant’s appearance, the trial court held the formal probation violation hearing. At the outset of the hearing, the prosecutor outlined the reasons for the hearing, which included three further assaults on S.D. and that appellant had not paid his “outstanding debt” through the probation department. At the hearing, S.D. testified that during 2006, appellant had assaulted her on three occasions. The probation officer testified that appellant had failed to “pay any fees for probation” and that the prosecutor had filed new charges against appellant for engaging in domestic violence.
The probation report also disclosed a report from appellant’s girlfriend suggesting that appellant was using rock cocaine.
After listening to the witnesses at the hearing, the trial court found that appellant had assaulted S.D. and was not in compliance with the terms and conditions of his probation. Sentencing followed. The trial court found no facts in mitigation. In aggravation, it found: (1) “there is increasing criminality involved,” and (2) appellant was a danger to the community. The trial court imposed an aggregate term in state prison of seven years, consisting of an upper term of four years for the assault and a consecutive three-year term for the great bodily injury enhancement.
During sentencing, the trial court directed appellant to pay a “$200 restitution fine, a $200 parole revocation fee, [and] a $20 security fee.”
The minute order for the sentencing proceedings indicates that “Appellant is to pay a restitution fine pursuant to section 1202.4 (B) Penal Code in the amount of $200.” The minute order also said: “Appellant is to pay a parole restitution fine, pursuant to Penal Code section 1202.45 in the amount of $200 said fine is stayed and the stay is to become permanent upon successful completion of parole.”
The abstract of judgment indicates that appellant had the following financial obligations: a $200 restitution fine imposed pursuant to section 1202.4, subdivision (b), and a $200 parole revocation restitution fine imposed pursuant to section 1202.45.
DISCUSSION
I. The Restitution Fine
Appellant contends that the imposition of an additional section 1202.4, subdivision (b), restitution fine at sentencing was unauthorized. We conclude that appellant has misinterpreted the record.
A. The Pertinent Legal Principles
Section 1202.4, subdivision (b)(1), provides in part: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($ 200).”
Section 1202.45 provides that at sentencing, in addition to imposing the section 1202.4, subdivision (b) restitution fine, the court should also impose an additional parole revocation restitution fine in the same amount as the post-conviction restitution fine. The additional fine shall be suspended unless parole is revoked.
The triggering event for imposition of a section 1202.4 restitution fine is conviction. (People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).) That restitution fine is imposed immediately after conviction upon the grant of probation and remains in force even after probation is revoked. Consequently, the imposition of an additional section 1202.4 restitution fine upon the revocation of probation is unauthorized. (Chambers, supra, at pp. 820-823.)
Section 2085.5 authorizes the Department of Corrections to collect from a prisoner or a parolee the restitution fine owed pursuant to section 1202.4, subdivision (b).
Where the law requires a defendant to be supervised on parole as part of his punishment, then at sentencing, the court must impose a parole revocation fine. That restitution fine is suspended until such time as the defendant begins parole supervision. (People v. Smith (2001) 24 Cal.4th 849, 851, 853.)
B. The Analysis
Appellant argues that the trial court properly ordered a section 1202.4, subdivision (b), $200 restitution fine after conviction and upon the grant of probation. However, later at sentencing and upon the pronouncement of judgment, the trial court improperly imposed a second and unauthorized section 1202.4, subdivision (b) restitution fine, again in the amount of $200. He cites the decision in Chambers, supra, 65 Cal.App.4th 819 to support this claim and requests that the restitution fine imposed at judgment be stricken as it is unauthorized.
Respondent argues there is no error and that the decision in Chambers is dispositive and does not require this court to strike the section 1202.4, subdivision (b) restitution fine included within the judgment. Respondent asserts that in pronouncing judgment, the trial court merely reiterated its previous order for the section 1202.4, subdivision (b) restitution fine and that the trial court properly included that same restitution fine in the judgment.
The record indicates that during the grant of probation, appellant failed to pay the section 1202.4, subdivision (b) restitution fine.
In Chambers, supra, 65 Cal.App.4th 819, after conviction and upon the grant of probation, the trial court imposed a $200 section 1202.4, subdivision (b) restitution fine. After revocation of probation and during the pronouncement of sentence, the court imposed a $500 restitution fine. (Chambers, supra, at p. 821.)
The court in People v. Arata (2004) 118 Cal.App.4th 195 explained the decision in Chambers, as follows. “In the absence of extraordinary and compelling circumstances, when a person is convicted of a felony, a restitution fine must be imposed, irrespective of whether probation is granted. (§ 1202.4, subd. (b).) If probation is granted, payment of the restitution fine must be made a condition of that probation. (§ 1202.4, subd. (m).) [¶] Despite the fact that the restitution fine is imposed as a condition of probation, however, it survives the probationary term. (People v. Chambers[, supra,] 65 Cal.App.4th 819, 822 . . . .) In Chambers, we said a trial court has no statutory authority to order a second restitution fine upon revocation of probation, because a restitution fine imposed as a condition of probation remained in force despite revocation of probation. We reviewed the statutes in effect when the appellant was granted probation in 1993, and subsequent statutory changes. We concluded: ‘There is nothing in the current statutory scheme to suggest any change in the Legislature’s intent to have a restitution fine survive the revocation of probation. Indeed, the statutory scheme suggests otherwise. Restitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. (. . . § 1202.4, subd. (b).)’ (Chambers, supra, 65 Cal.App.4th at p. 822.)” (Arata, supra, at pp. 201-202.)
The Chambers court struck the larger $500 section 1202.4, subdivision (b) restitution fine after finding that the trial court’s original order for the $200 restitution fine remained in full force and effect. (Chambers, supra, 65 Cal.App.4th at p. 823.)
Respondent’s argument is persuasive. Under the controlling statutes, the trial court did not err. At sentencing, the trial court did not impose an unauthorized or a greater restitution fine than it had imposed at conviction when probation was granted. During the sentencing proceedings after revocation of probation, the trial court simply reiterated its original order after conviction and included the same unpaid restitution fine within the judgment. It also imposed the section 1202.45 parole restitution fine it was required to impose when a defendant is committed to state prison. The trial court’s minute order and the abstract of judgment support this court’s interpretation of the trial court’s orders. (People v. Smith (1983) 33 Cal.3d 596, 599 [whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript depends upon the circumstances of the particular case].)
The decision in Chambers does not require a different result. We are not addressing a situation where the defendant will be required to pay two restitution fines pursuant to section 1202.4, subdivision (b). At sentencing after revocation, there was no increase in the amount of the restitution fine. (Chambers, supra, 65 Cal.App.4th at pp. 822-823.)
Section 1202.44 provides: “In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation revocation restitution fines shall be deposited in the Restitution Fund in the State Treasury.” (Added by Stats. 2004, ch. 223, § 3 (S.B. 631), eff. Aug. 16, 2004.)
II. Blakely-Cunningham Error
Appellant contends that the trial court committed constitutional error by imposing an upper term for the assault without affording him a jury trial with proof beyond a reasonable doubt as to the truth of the aggravating factors.
We disagree.
A. The Background
The Early Disposition Probation Officer’s Report for the hearing of June 21, 2005, contains a printout of appellant’s criminal history. It discloses that as a juvenile, appellant was diverted in 1992 after a contact for receiving stolen property. In 1993, he had contacts for one theft and two robberies. During 1993, the trial court sustained a petition related to these contacts. The probation report is ambiguous as to whether the juvenile court sustained an allegation of robbery or merely found appellant had committed a misdemeanor. As an adult, in 1995, appellant was arrested for possessing cocaine base or purchasing it for sale. In 1996, he was convicted of being an unlicensed driver and granted probation; he was also arrested that year for being a minor possessing alcohol, for being a juvenile felon possessing a firearm, for gaming, and for first degree burglary. In 1997, he was arrested for a “failure to comply” and possessing a stolen vehicle; he was convicted of a misdemeanor violation of the Los Angeles County Ordinance No. 13.18.010 and of transporting a controlled substance from county to county, a violation of section 11352, a felony, and committed to state prison. In 2000, he was convicted of possessing marijuana for sale and committed to state prison for 16 months. Additionally, for this offense in 2003, his parole was violated, and he was recommitted to finish his term. In 2002, he was convicted of being an unlicensed driver. He was also arrested for possessing less than an ounce of marijuana, but no disposition was indicated on the automated system. In 2003, he was convicted of using offensive language in public and spent 90 days in the county jail. In 2005, he was convicted of driving with a driver’s license that was suspended or revoked “for other reasons.”
The probation officer’s comment with respect to appellant’s criminal history was that appellant’s known history is “lengthy and multi-state with numerous arrests and convictions for theft and drug-related offenses, some resulting in prison commitments.” The probation officer added that currently, appellant has a misdemeanor matter pending. Also appellant is unreliable and does not comply with court orders, as is evidenced by his several bench warrant issuances and several parole violations.
As we mention earlier in this opinion, during sentencing, the trial court found no factors in mitigation and found that “there is increasing criminality involved” and that appellant is a danger to the community.
B. The Analysis
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely, supra, 542 U.S at page 303, the high court stated that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on California’s determinate sentencing law (DSL) and concluded that its sentencing scheme was constitutional. The court held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court overruled Black I. It held that “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 127 S.Ct. at p. 868.) The court invalidated the California DSL to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, at p. 871].)
Section 1170, subdivision (b), of the DSL has since been amended in response to the Cunningham decision to provide that the trial court has the discretion, in the interests of justice, to impose any of the three terms provided by statute. (Stats. 2007, ch. 3, signed into law as an urgency measure on Mar. 30, 2007.)
Following Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. . . . [¶] . . . Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
The United States Supreme Court issued a writ of certiorari in Black I. After Cunningham was decided, the United States Supreme Court vacated the judgment in Black I and remanded the cause sub nom. Black v. California (2007) ___ U.S ___ [127 S.Ct. 1210]. On remand, the California Supreme Court reached its decision in Black II.
The court in People v. Sandoval, supra, 41 Cal.4th at pages 836 to 837, said: “The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239–244.)”
The court noted that for example, in Black II, the record contained substantial evidence of “‘prior convictions . . . [that were] numerous or of increasing seriousness.’” It approved upper term sentencing as judicial factfinding is permitted where such a factor is supported by the record. (Black II, supra, 41 Cal.4th at p. 818; see Apprendi, supra, 530 U.S. at p. 488; Jones v. United States (1999) 526 U.S. 227, 248.) Similarly, where the record supports the service of a prior prison term, that recidivist factor also permits judicial factfinding imposing an upper term sentence. (Black II, supra, at p. 818.)
Here, the trial court’s explicit reliance at sentencing on a factor of “increasing criminality” was sufficient to show that the maximum term was the upper term. The use of this factor in aggravation is the equivalent of a finding that appellant’s convictions are numerous and of increasing seriousness. Appellant’s criminal history of two prior felony convictions and numerous misdemeanor convictions, with the current conviction of felonious assault, supports such a finding. (Black II, supra, 41 Cal.4th at p. 818, citing People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are numerous] and People v. Ramos (1980) 106 Cal.App.3d 591, 609-610 [where a defendant convicted of robbery had two minor juvenile offenses and prior adult convictions for petty theft and driving without a license, the prior convictions were of increasing seriousness].) Also, the record discloses that appellant previously had served two separate prison terms. (Black II, supra, 41 Cal.4th at p. 819.)
On this record, we conclude that appellant had at least one constitutionally permissible aggravating factors, making appellant eligible for upper term sentencing without requiring that he be afforded a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.
In pertinent part, section 1214 states: “(a) If the judgment is for a fine, including a restitution fine ordered pursuant to Section 1202.4, 1202.44, or 1202.45 . . . with or without imprisonment, . . . the judgment may be enforced in the manner provided for the enforcement of money judgments generally. Any portion of a restitution fine or restitution fee that remains unsatisfied after a defendant is no longer on probation or parole or has completed diversion is enforceable by the California Victim Compensation and Government Claims Board pursuant to this section. Notwithstanding any other provision of law prohibiting disclosure, the state, as defined in Section 900.6 of the Government Code, a local public entity, as defined in Section 900.4 of the Government Code, or any other entity, may provide the California Victim Compensation and Government Claims Board any and all information to assist in the collection of unpaid portions of a restitution fine for terminated probation or parole cases, or of a restitution fee for completed diversion cases. . . . [¶] . . . [¶] (c) Except as provided in subdivision (d), . . . a . . . restitution fine that was imposed pursuant to Section 1202.4 in any of the following cases may be enforced in the same manner as a money judgment in a limited civil case: [¶] . . . [¶] (3) In a noncapital criminal case where the court has received a plea of guilty or nolo contendere.”
We note that at conviction, the trial court failed to impose and to stay the newly enacted probation revocation restitution fine. However, this restitution fine plays no role in this case. Respondent’s failure to object to the failure to impose the probation revocation restitution fine at conviction waived the issue of the trial court’s failure to impose that restitution fine. (People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Smith, supra, 24 Cal.4th at pp. 852-854 [a section 1202.4 restitution fine is waived by the failure to object at the grant of probation to the failure to impose the fine, but the mandatory provisions of section 1202.45 indicate that the parole revocation restitution fine is not waived by a failure to object].)