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People v. Baisey

Court of Appeals of California, Fourth District, Division Two.
Nov 4, 2003
No. E033539 (Cal. Ct. App. Nov. 4, 2003)

Opinion

E033539.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. WENDY LANETTE BAISEY, Defendant and Appellant.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.


Defendant unsuccessfully challenges her two-year midterm prison sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On June 26, 2000, San Bernardino County Sheriffs deputies stopped the vehicle that defendant was driving. After she failed a field sobriety test and admitted she had smoked methamphetamine the evening before, the officers arrested her for being under the influence. They searched her car and found drug paraphernalia and three baggies that contained 1.62 grams of methamphetamine.

A felony complaint charged defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)) and driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). Pursuant to a plea bargain, she pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in exchange for the dismissal of the remaining charges.

On September 15, 2000, the trial court placed defendant on five years probation with terms and conditions. Approximately six months later, in March 2001, her probation officer filed a probation revocation petition, alleging she had used methamphetamine. On April 6, 2001, she admitted the allegation. The trial court revoked and reinstated her probation on its original terms with credit for time served in county jail.

On March 14, 2003, defendants probation officer filed a probation revocation petition, alleging probation violations in that she had been arrested for possession of drug paraphernalia (Health & Saf. Code, § 11364); she had failed to report for drug testing, attend NA/AA meetings, make restitution payments; and she had associated with a parolee known to use drugs. After she admitted the allegations, the trial court revoked her probation and imposed a two-year midterm prison sentence.

DISCUSSION

Defendant appeals, contending the trial court erroneously considered events that occurred after her probation was reinstated to support its decision to impose the two-year midterm prison sentence. We affirm.

Defendants failure to object on the ground asserted on appeal waives appellate review of the issue. (People v. Scott (1994) 9 Cal.4th 331, 353.) To preserve a claim that a trial court improperly relied on certain aggravating factors, a defendant must object at the sentencing hearing on the specific grounds he or she asserts on appeal. (People v. de Soto (1997) 54 Cal.App.4th 1, 8-9, citing People v. Scott, supra, 9 Cal.4th 331.) This rule applies to claims that the factors cited in support of sentencing choices were inapplicable, duplicative, or improperly weighed. (People v. Scott, supra, 9 Cal.4th at p. 353.) In de Soto, the defendant claimed, inter alia, that the sentencing court improperly relied on an element of the crime to impose the upper term. (People v. de Soto, supra, 54 Cal.App.4th at p. 7.) The de Soto reviewing court rejected the claim and held that general objections are insufficient because they do not give the sentencing court a genuine opportunity to evaluate the claims and correct any errors it may have made. (People v. de Soto, supra, 54 Cal.App.4th at p. 10.) Similarly, in the case before us, defendant failed to specifically object that the trial court was relying on improper factors. Thus, she failed to preserve appellate review of her contention.

Nevertheless, we have reviewed the record and find no reason to remand the matter for resentencing.

Upon finding a probation violation (admitted or otherwise), a court has three options—reinstate probation on the same terms, reinstate it on modified terms, or terminate it and order a commitment to prison. (People v. Harris (1990) 226 Cal.App.3d 141, 147.) When a court reinstates probation, a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement. "To hold otherwise would seriously impede a courts flexibility to deal effectively with the offender who, granted the `clemency and grace of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity . . . would discourage a court from ever reinstating probation. That would further crowd prisons and tend to sacrifice probations goals of supervised reform and rehabilitation [citation]." (People v. Harris, supra, 226 Cal.App.3d at p. 147.)

Here, before it imposed defendants two-year midterm sentence, the court stated it had read and considered her supplemental probation report, her statement in mitigation and People v. Harris, supra, 226 Cal.App.3d 141. The court further stated that when it considered Harris and the provisions of California Rules of Court, rules 4.421 and 4.423, the two-year midterm recommended by defendants probation report was appropriate.

The court also stated it had read and considered People v. Alkire (1981) 122 Cal.App.3d 119, cited by defendant in her statement in mitigation. However, as defendant notes, that case does not figure into any argument presented on appeal.

All further rule references are to the California Rules of Court.

A remand for resentencing is not necessary if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of error (People v. Osband (1996) 13 Cal.4th 622, 728) and the midterm is statutorily presumed to be the appropriate term unless there are circumstances in aggravation or in mitigation of the crime. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583; Pen. Code, § 1170, subd. (b); rule 4.420(a).) A single aggravating factor is required to impose the upper term (People v. Osband, supra, 13 Cal.4th at p. 728) and a trial court is not required to state reasons for rejecting any mitigating factors. (People v. Avalos, supra, 47 Cal.App.4th at p. 1583.)

The circumstances surrounding defendants crime as stated in her original probation report, which the trial court properly could consider, indicate: she was driving a car while under the influence of methamphetamine; she admitted using methamphetamine the night before and she was an addict with methamphetamine and drug paraphernalia in the car; she had quit attending her NA/AA meetings; and she had lost her job, her home and her child because of her drug usage. Under Harris, the court could consider the fact that after she initially was placed on probation in September 2000, she resumed her drug usage which resulted in the revocation and reinstatement of her probation. Rule 4.421, to which the court referred when it imposed the two-year midterm sentence, lists aggravating circumstances that may be considered to support a sentence. Rule 4.421(b)(5) provides: "(b) Facts relating to the defendant, including the fact that: [¶] . . . [¶] (5) The defendants prior performance on probation or parole was unsatisfactory." Accordingly, after defendants probation was reinstated and she again admitted violating her probation conditions, the court properly could conclude, as it stated when it denied her request for an OR release pending sentencing, that she was "a danger to everyone else around and to herself [as she] obviously is not constrained by the rules set forth" by her probation terms and conditions. Thus, it is not reasonably probable that she would receive a more favorable sentence on remand.

Defendant also argues, and the People agree, that the trial court improperly increased her Penal Code section 1202.4 restitution fine to $400 and, as a consequence, improperly imposed a corresponding $400 parole revocation fine pursuant to Penal Code section 1202.45. The record reveals that when the trial court placed her on probation in September 2000, it imposed a $200 restitution fine pursuant to Penal Code section 1202.4. The minute order dated September 15, 2000, however, incorrectly indicates the trial court imposed a $400 fine. Based on this clerical error, the trial court apparently believed it previously had ordered a $400 restitution fine and ordered that amount when it imposed the two-year midterm prison sentence. The trial court should have reimposed the $200 restitution fine because a restitution fine survives a revocation of probation. (People v. Downey (2000) 82 Cal.App.4th 899, 921; People v. Chambers (1998) 65 Cal.App.4th 819, 820-821.) Therefore, the judgment must be corrected to reflect a $200 restitution fine as well as a corresponding $200 parole revocation fine.

DISPOSITION

The judgment is modified to reflect a $200 restitution fine and a corresponding $200 parole revocation fine. (Pen. Code, §§ 1202.4, 1202.45.) In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections. (Pen. Code, §§ 1213, 1216.)

We concur, WARD, J. and KING, J.


Summaries of

People v. Baisey

Court of Appeals of California, Fourth District, Division Two.
Nov 4, 2003
No. E033539 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Baisey

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WENDY LANETTE BAISEY, Defendant…

Court:Court of Appeals of California, Fourth District, Division Two.

Date published: Nov 4, 2003

Citations

No. E033539 (Cal. Ct. App. Nov. 4, 2003)