Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR028974A, Eric C. Wyatt, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Omar Miramontes Lopez contends (1) there was insufficient evidence supporting his revocation of felony probation, and (2) the trial court erred in imposing a Penal Code section 672 fine. We will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On June 26, 2007, Lopez was charged with attempted murder, shooting at an occupied vehicle, and participation in a street gang. It also was alleged that he personally discharged a firearm and committed the offenses for the benefit of a criminal street gang. Lopez pled not guilty and denied all allegations.
Pursuant to a plea agreement on September 21, 2007, Lopez pled guilty to shooting at an occupied vehicle. In exchange, the agreement provided for a seven-year lid on a term of imprisonment, with no initial prison term being imposed.
At the October 22, 2007, sentencing hearing, the trial court suspended imposition of sentence and placed Lopez on felony probation for five years. In addition, numerous fines and conditions were imposed, including a $740 fine pursuant to section 672. All other charges and allegations were dismissed pursuant to the plea agreement.
On June 16, 2008, Madera Police Officer Jason Gutknecht witnessed Lopez commit a traffic violation and stopped Lopez’s vehicle. When Gutknecht asked Lopez for his driver’s license, Lopez instead provided an identification card. Gutknecht determined that Lopez’s driver’s license had expired.
Gutknecht asked Lopez to step out of the vehicle; the officer placed Lopez under arrest. During a search incident to arrest, Gutknecht found a plastic baggie in Lopez’s front pants pocket. The baggie contained “an off white crystal-like substance” and a $20 bill. The officer believed the substance was methamphetamine. About two or three minutes later, Lopez spontaneously stated, “Those aren’t my pants.” Lopez maintained that the pants belonged to his cousin, with whom he lived and often shared clothing.
On June 18, 2008, the probation department filed a petition to revoke Lopez’s probation based on the June 16 incident. Also on June 18, Lopez was arraigned on the probation violation petition and denied the allegations.
At the August 22, 2008, hearing on the petition, Lopez’s cousin, Joel Garcia, testified that the pants Lopez had been wearing were his (Garcia’s) and the methamphetamine and $20 belonged to him, not Lopez. At the conclusion of the hearing, the court found Lopez had violated his probation by not obeying all laws and being in possession of methamphetamine.
On October 9, 2008, the trial court revoked the previous grant of probation for the shooting at an occupied vehicle offense, sentenced Lopez to five years in state prison for that offense, and confirmed the section 672 fine in the amount of $740.
DISCUSSION
Lopez contends the trial court erred in imposing a section 672 fine. He also contends there was insufficient evidence to support a revocation of his probation and the trial court abused its discretion in not reinstating his probation.
I. Section 672 Fine
Section 672 provides: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”
In People v. Breazell (2002) 104 Cal.App.4th 298, 304 (Breazell), the court stated:
“The language used in section 672 demonstrates that it was meant to provide a fine for offenses for which another statute did not impose a fine. In other words, this is a catchall provision allowing a fine to be imposed for every crime, even if the statute criminalizing the conduct did not specifically authorize a fine. The limiting provision was meant to ensure that a fine pursuant to section 672 would not be imposed if another statute authorized a fine for the offense.”
The fine under section 672 was imposed at sentencing on the conviction for the section 246 offense of shooting at an occupied motor vehicle. Section 246 does not otherwise specify a fine for that offense or reference any other section that specifically authorizes a fine for violating section 246.
In reiterating the imposition of the section 672 fine for the section 246 offense, the trial court specifically noted that it was confirming the previously ordered $740 fine. The trial court did not impose a second section 672 fine for the same offense; nor did it impose any other fine for the offense itself, only restitution fines. Therefore, we conclude the trial court did not err in imposing the section 672 fine. (Breazell, supra, 104 Cal.App.4th at p. 304.)
II. Revocation of Probation
One of Lopez’s probation conditions was that he obey all federal, state, and local laws. Another condition was that he not possess illegal substances. Here, Lopez violated traffic laws, drove while his license was suspended, and was in possession of an illegal substance.
The grounds alleged in the petition to revoke probation were that Lopez had failed to obey all federal, state, and local laws, and that he violated the provision requiring that he not possess illegal narcotics. The evidence established that Lopez initially was stopped by Gutknecht after he violated state traffic laws. Gutknecht then discovered that Lopez’s driver’s license had expired. While conducting a search incident to arrest, Gutknecht found methamphetamine in the pocket of the pants Lopez was wearing.
“A 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.…’ [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978, 981.) “[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.” (People v. Rodriguez (1990) 51 Cal.3d 437, 439.) “However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.” (Galvan, at p. 982.) An appellate court will overrule the trial court’s decision to revoke probation only upon a showing of an abuse of discretion. (Ibid.)
Lopez does not address his failure to obey all laws in the context of driving without a license. He focuses solely on the contention that the pants he was wearing were not his and the methamphetamine belonged to his cousin. As the trial court stated during the hearing, even if the pants belonged to Lopez’s cousin, the issue was whether it was more likely than not Lopez knew methamphetamine was in the pocket.
The trial court noted that Lopez had put the pants on, worn them for a period of time, sat down in the vehicle to drive, and was on his way to a party. The trial court found under these circumstances it was more likely than not Lopez knew methamphetamine was in the pocket. Lopez had numerous opportunities to rid himself of the methamphetamine, if in fact it was not his, prior to being stopped by the officer. Substantial evidence supports the trial court’s finding that Lopez violated conditions of probation.
Once a probation violation occurs, the trial court has broad discretion to continue or revoke probation. A revocation constitutes neither an abuse of discretion nor a violation of due process if the court sufficiently articulates the reasons. (People v. Jones (1990) 224 Cal.App.3d 1309, 1315 (Jones).) Among the reasons the trial court articulated for revoking Lopez’s probation was that the initial grant of probation was unusual. The offense required a term of imprisonment absent unusual circumstances. The trial court noted that as a result of the section 246 offense, “two people ended up with bullet holes in them.”
Additionally, the trial court noted that Lopez returned to Madera, associated with people he knew would put him in a position of violating probation, and the felony violation of probation occurred nine months into a five-year grant of probation. After reviewing the probation report and hearing argument from both counsel, and Lopez himself, the trial court concluded that Lopez was not a good candidate for probation and declined to reinstate probation.
We conclude the trial court did not abuse its discretion in refusing to reinstate probation. (Jones, supra, 224 Cal.App.3d at p. 1315.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, J., HILL, J.