Opinion
A100087.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. LINDA MARIE DEEM, Defendant and Appellant.
Linda Marie Deem appeals a judgment and order sentencing her to the aggravated term of three years in prison, imposing a $ 400 restitution fine, and awarding 659 days credits. In June 1997, appellant pleaded guilty to one count of possession of heroin (Health & Saf. Code, § 11350, subd. (a)). The court suspended imposition of sentence and placed appellant on probation. The court revoked, reinstated and modified appellants probation five times, before imposing the three-year prison term.
Appellant contends: (1) The case must be remanded for resentencing because the court failed adequately to state its reasons for imposing the upper term; and (2) The judgment must
be modified to reduce the restitution fine to the amount the court originally imposed at the time of the plea. We shall modify the judgment to reduce the restitution to $ 200, add the mandatory $ 200 parole revocation fine (Pen. Code, § 1202.45), and affirm the judgment as modified.
I
Adequacy of Statement of Reasons for Imposing the Aggravated Term
1. Courts Statement of Reasons
The probation report was prepared in 1997, at the time of the guilty plea. It identified three factors in aggravation: (1) appellants prior convictions as an adult were numerous, or appeared to be increasing in seriousness; (2) she was on probation at the time she committed the offense; and (3) her performance on probation was unsatisfactory. In mitigation, the report identified two factors: (1) the defendant was suffering from the adverse effects of addiction, which may have reduced her culpability, and (2) she voluntarily acknowledged wrongdoing at an early stage. The report concluded that the factors were evenly balanced, and recommended imposition of the midterm.
On August 23, 2002, after it had revoked, reinstated, and modified appellants probation five times, the court, at the sentencing hearing, referred to the 1997 probation report and stated that despite all the attempts to assist appellant in overcoming her addiction, "it just hasnt worked, and apparently, she doesnt want to be on probation anymore if the requirement is that she do a long-term residential treatment program, which it is, and she prefers simply to be sentenced and go finish off her time in state prison. [P] So its the judgment of the court that the upper term is the appropriate term, all factors in aggravation and mitigation considered, and its ordered that she is to serve three years in the custody of the California Department of Corrections." Appellants counsel interjected that the factors in mitigation and aggravation had not changed since the original probation report, which had recommended the midterm. The court responded that, in its judgment, "the balance actually weighs all things considered in favor of the aggravated term."
2. Adequacy of Statement
Appellant contends that the courts statement of reasons was inadequate because the court did not identify the factors it found in mitigation and aggravation except by reference to the 1997 probation report.
It is debatable whether counsels comments regarding the probation reports recommendation of the midterm were intended as an objection to the adequacy of the courts statement of reasons, or whether they were merely an attempt to urge the court to impose the midterm. (See People v. Scott (1994) 9 Cal.4th 331, 349-350, 885 P.2d 1040.) Appellant did unequivocally object to the adequacy of the courts statement of reasons in a subsequent request for resentencing, or modification of the sentence. Although that motion resulted in a modification to provide for additional 216 days credit, the court gave no further statement of its reasons for imposing the upper term, and declined appellants request to impose the mitigated term. In light of the ambiguity of the record, we shall assume, arguendo, that the issue is not waived.
A statement of reasons that merely incorporates by reference the probation report is inadequate. (See, e.g., People v. Pierce (1995) 40 Cal.App.4th 1317, 1319-1320.) Here, the court did offer a little more explanation than mere incorporation by reference of the probation report because it referred to the failed efforts to help appellant overcome her addiction and comply with the terms of probation. These efforts included the numerous revocations and reinstatements of probation, and the effort to place her in a long-term residential treatment program, which she ultimately refused. The court clearly stated that it disagreed with the conclusion of the probation report, and that it found "the balance actually weighs in favor of the aggravated term." The courts comments explain why it assigned more weight to her poor performance on probation, and the other aggravating factors than it did to the mitigating factor that her addiction may reduce her culpability. The court, of course, was not bound by the recommendation of the probation report to impose the midterm and was also free to assign more weight to the aggravating factors than the mitigating factors. (People v. Lamb (1988) 206 Cal. App. 3d 397, 401-402, 253 Cal. Rptr. 465 ["`Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms. [Citation.] . . . and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation"].)
In any event, even if the statement of reasons were inadequate, it is not reasonably probable that a remand to the trial court would result in a lighter sentence. (People v. Mcleod (1989) 210 Cal. App. 3d 585, 590-591, 258 Cal. Rptr. 496.) Appellant argues a more favorable result is probable because the 1997 probation report recommended the midterm, and the factors in aggravation and mitigation had not changed since then. The record is to the contrary. There were circumstances since the original probation report that the court could consider. "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. [P] . . . .Allowing an offender to fail multiple grants of probation with absolute impunity under rule 435(b)(1) would discourage a court from ever reinstating probation." (People v. Harris (1990) 226 Cal. App. 3d 141, 147, 276 Cal. Rptr. 41.) Here, the court concluded not only that the aggravating factors numerically outweighed the mitigating factors, but also that appellants poor performance on probation, and the other aggravating factors, qualitatively outweighed the factors in mitigation especially in light of her continued inability, or refusal, to comply with the terms of reinstated probation as demonstrated by the multiple revocations and reinstatements of probation. In light of the courts unequivocal statement of its ultimate conclusion that the factors in aggravation outweighed the factors in mitigation, and its refusal to reduce the sentence in response to appellants motion to modify the sentence, we conclude that it is not reasonably probable that remand would result in a more favorable sentence.
II.
Modification of Fine
At the original sentencing hearing in June 1997 the court suspended imposition of sentence, but imposed the statutory minimum restitution fine of $ 200. (Pen. Code, § 1202.4.) In August 2002, when the court finally imposed a prison sentence, it ordered a restitution fine of $ 400. Appellant contends that the court did not have the authority to increase the amount of the original $ 200 restitution fine it originally imposed. (People v. Downey (2000) 82 Cal.App.4th 899, 921; People v. Chambers (1998) 65 Cal.App.4th 819, 822.)
The issue is not waived by a failure to object because the increased fine is an unauthorized sentence. (People v. Chambers, supra, 65 Cal.App.4th 819, 823; see also People v. Scott, supra, 9 Cal.4th 331, 354.)
The People concede that the court erred by adding $ 200 to the amount of the section 1202.4 fine. Section 12024.45, however, provides that the court shall "assess an additional restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." The People contend, and we agree, that the courts error was in designating the additional $ 200 as an increase in the section 1202.4 restitution fine instead of imposing a parole revocation fine in that amount, which it was required to do pursuant to section 1202.45. In People v. Andrade (2002) 100 Cal.App.4th 351, the court held that, when the trial court imposes a section 1202.4 restitution fine, suspends imposition of sentence, and the defendant subsequently violates probation and is sentenced to a term with the possibility of parole, the section 1202.4 fine is implicitly restated at the time of revocation of probation and the court not only may, but must, impose a parole revocation fine in the same amount as the section 1202.4 restitution fine. The parole revocation fine is "suspended unless the persons parole is revoked." ( § 1202.45.) No remand is necessary to correct this error, because, "under section 1202.45, a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the `sentence includes a period of parole. Because the erroneous imposition of a parole revocation fine presents a pure question of law with only one answer, any such error is obvious and correctable without reference to any factual issues in the record or remanding for further findings." (People v. Smith (2001) 24 Cal.4th 849, 853.)
CONCLUSION
The judgment is modified to reduce the section 1203.4 fine to $ 200, and add the mandatory section 1202.45 fine in the amount of $ 200, which is suspended unless parole is revoked. As modified, the judgment is affirmed.
We concur: Marchiano, 10 P.J., and Swager, J.