Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. KA081155, Bruce F. Marrs, Judge
Alan Mason, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Thomas G. Dandurand appeals the order revoking his probation and ordering him to serve a two-year prison sentence following his guilty plea to inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) He contends the trial court abused its discretion in revoking his probation. He also claims the court erred in adding penalty assessments of $960 to the domestic violence fee imposed pursuant to section 1203.097, subdivision (a)(5). We shall order both the domestic violence fee and corresponding penalty assessments stricken. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded guilty prior to trial, the relevant facts are derived from the preliminary hearing transcript. On October 28, 2007, appellant pushed, punched, and choked his girlfriend during an argument. When she tried to leave, he slammed the door and said, "You're not going anywhere."
On March 6, 2008, appellant pleaded guilty to inflicting corporal injury on a cohabitant in violation of section 273.5, subdivision (a). That same date, the court suspended imposition of sentence and granted appellant five years of formal probation. As conditions of his probation, appellant was ordered to (1) complete 90 days of service at Cal Trans or Marshall Canyon Tree Farm; (2) provide proof of enrollment in either program within 30 days and proof of completion of at least 45 days of service on September 8, 2008; (3) cooperate with the probation officer in a plan for counseling; and (4) enroll in and complete a 52-week domestic violence program. The court also imposed fines and fees, including a $400 domestic violence fee (§ 1203.097) plus penalty assessments totaling $960.
On September 8, 2008, the court revoked probation. At the violation hearing held on October 2, 2008, appellant's probation officer recommended that his probation be revoked. She reported that appellant had been dismissed from the domestic violence program after attending only two classes "due to excessive absences" and had failed to make any payments as ordered by the court. She also testified that appellant told her that "he wanted to come to court because he was not going to comply with his conditions of probation." The probation officer believed appellant's failure to comply with the terms and conditions of his probation was due to a lack of motivation rather than a lack of financial resources.
Appellant testified that his failure to attend the domestic violence classes was due to his inability to pay the $25 fee for each class. He asked his probation officer about obtaining a fee waiver, and she told him he "would have to address it with the court." He claimed he had only completed two days of work at the tree farm because "[f]inancially I didn't have the means. I would run out of gas trying to get to work." He acknowledged that transportation was available from the county courthouse to the tree farm, yet claimed he was unable to make it to the courthouse. Appellant represented that he would complete the terms and conditions of his probation by working full-time for his father and getting a bicycle. He also offered that he would "figure out a way" to meet his financial obligations and would "collect cans on the side of the road" if necessary.
On cross-examination, appellant admitted he did not enroll in the domestic violence program until March 31, 2008, that he was dismissed from the program on April 23, 2008, and that he had not attended any classes or made any effort to reenroll until his probation was revoked on September 8, 2008. He also acknowledged that his probation officer had told him he needed to talk to the court about obtaining a fee waiver, yet waited until his probation was revoked to do so. He also admitted that he "probably could have researched a little bit better and found somebody" to give him a ride to the tree farm or the courthouse.
Appellant's father testified that if appellant were released from jail he would employ him at his solar energy company. He had employed appellant for a short time at the beginning of his probation, but "had very little" work at the time.
At the conclusion of the hearing, the court found appellant in violation of his probation. In issuing its ruling, the court stated: "The initial probation officer that prepared the presentence report certainly was not very enthusiastic about [appellant], and the initial report is fairly consistent with what our probation officer here testified to. [¶] Great deal made about no transportation. I noted in the probation report, initial probation report, as well as the preliminary hearing, that there was a great deal of chit chat about a truck, the defendant driving a truck. Didn't hear anything about that. [¶] The defendant doesn't look like he's starving. I realize gasoline is not exactly cheap. [¶] The probation officer indicated that he didn't seem to be making much effort to get a job. [¶] I concur... with the probation officer's observation that the defendant wasn't taking this seriously. I find that her statement quoting him [that] he was not going to comply with the terms of probation to be very believable. [¶] For those reasons, I'm going to find the defendant to be in violation of his grant of probation." The court proceeded to sentence appellant to the low term of two years in state prison.
DISCUSSION
I.
Appellant contends the court abused its discretion, and thereby violated his due process and equal protection rights, by revoking his probation and sentencing him to state prison. He claims the court failed to hold a hearing on his ability to pay the costs, fees and fines associated with his probation, and that no such finding could be made without evidence of his "income, assets, and necessary living expenses." We conclude the court acted well within its discretion in revoking appellant's probation based on its finding that he had willfully failed to comply with its terms and conditions.
The trial court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation...." (§ 1203.2, subd. (a).) The trial court has broad discretion in determining whether a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Only in a very extreme case should an appellate court interfere with the discretion of the trial court in determining whether to deny or revoke probation. (Ibid., citing People v. Lippner (1933) 219 Cal. 395, 400.)
Where "the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) "[I]t is the exclusive province of the trial judge... to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)
Contrary to appellant's claim, the court did not revoke his probation due to his failure to pay the associated costs, fines and fees. As appellant acknowledges, the court found he "was not taking probation seriously" and simply did not believe that his failure to comply was due to financial constraints. Substantial evidence supports these findings. Appellant conceded that he could have tried harder to find transportation to the tree farm. He also knew he was expected to provide proof of at least 45 days of service in the program on September 8, 2008, yet waited until that date to claim that he was unable to secure transportation. He also stopped attending his domestic violence classes shortly after his probation began and made no effort to seek a fee waiver until his probation was revoked.
We also reject appellant's claim that the matter must be remanded to determine whether he had the ability to pay the costs of his probation supervision because the record is devoid of any evidence that he was ordered to pay those costs.
II.
As a term of his probation, appellant was ordered to pay $400 to domestic violence funds in accordance with subdivision (a)(5) of section 1203.097. As to that fee, he was also ordered to pay penalty assessments totaling $960. (§§ 1464, subd. (a)(1), 1465.7, subd. (a); Gov. Code, §§ 70372, subd. (a), 76000, subd. (a).) In revoking probation and sentencing appellant to prison, the court stated that "[a]ll other fines and fees remain in full force and effect payable through the Department of Corrections."
In his opening brief, appellant contends the matter must be remanded to provide him the opportunity to demonstrate that he does not have the ability to pay the $400 domestic violence fee. He also claims the fee is not subject to the penalty assessments that were imposed. The People disagreed with appellant on both points in their respondent's brief. We subsequently asked the parties to submit supplemental briefs addressing whether the domestic violence fee survived the revocation of appellant's probation. In their response, the People concede that the fine is unauthorized and must be stricken because appellant's probation was revoked and he was sentenced to prison.
Subdivision (a)(5) of section 1203.097 provides that if a defendant is granted probation for a crime of domestic violence, the terms of probation shall include a minimum payment of $400 to be disbursed to various specified domestic violence funds. Appellant was ordered to pay the fee and corresponding penalty enhancements as terms and conditions of his probation, which was granted on March 6, 2008. When the court subsequently revoked appellant's probation and sentenced him to prison, the terms and conditions of his probation ceased to exist. (See People v. Lewis (1992) 7 Cal.App.4th 1949, 1955-1956.) The order reimposing the domestic violence fee and penalty assessments must therefore be stricken as an unauthorized sentence. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [recognizing that an unauthorized sentence "is subject to judicial correction whenever the error comes to the attention of the reviewing court"].)
Although the court stated on the record that all fines and fees imposed as terms and conditions of appellant's probation remained in full force and effect, neither the minute order nor the abstract of judgment refer to the $400 domestic violence fee or the $960 penalty assessment. In light of the court's oral ruling, we shall nevertheless order the superior court to notify the Department of Corrections and Rehabilitation that the $400 domestic violence fee and corresponding penalty assessment are stricken.
DISPOSITION
The $400 domestic violence fee and $960 penalty assessment imposed on March 8, 2008, are ordered stricken. The superior court shall so notify the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur, GILBERT, P.J., YEGAN, J.