Opinion
F051323
5-22-2007
THE PEOPLE, Plaintiff and Respondent, v. GERARDO GARZA LUCIO, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
INTRODUCTION
On May 25, 2006, appellant, Gerardo Garza Lucio, entered a plea of no contest to a misdemeanor violation of dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1), count one) and a felony violation of battery on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a), count 2). The trial court placed Lucio on probation upon various terms and conditions, including a term in jail. The court imposed a $400 restitution fine (§ 1202.4), a $400 fine to the probation revocation fund to be stayed unless Lucio violated probation (§ 1202.44), and a $400 fine to the domestic violence fund (§ 1203.097, subd. (a)(5)). On appeal, Lucio contends the court erred in imposing the $400 probation revocation fine.
Unless otherwise noted, all statutory references are to the Penal Code.
We struck the first issue in appellants opening brief challenging a $500 fine imposed by the trial court pursuant to section 294, subdivision (a). The trial court filed an amended minute order on January 17, 2007, striking this fine, mooting the issue on appeal.
DISCUSSION
Appellant contends the trial court erred in imposing the section 1202.44 fine because the statute provides for the fine only where a conditional sentence is imposed. Because the court imposed no sentence on count two, appellant argues that no sentence was imposed and the fine is not, therefore, applicable. Respondent argues the language in question is conditional, separated by the disjunctive "or" and that the fine is applicable whether the defendant is given a conditional sentence or probation. (See Kelly v. William Morrow & Co. (1986) 186 Cal.App.3d 1625, 1630.)
Section 1202.44 provides, in relevant part:
"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."
Respondent observes that during sentencing, the trial court mentioned a restitution fine of $400 and a probation revocation fine of $500. Respondent believes, and we agree, that the trial court misspoke when it stated the probation revocation fine was $500. The minute order states the probation revocation fine was set at $400. The minute order appears to accurately indicate the probation revocation fine imposed by the court.
Appellant argues that because the court did not impose a "sentence," section 1202.44 is inapplicable to his case. Appellants premise is predicated on section 1203, subdivision (a) which defines probation as the "suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." Although appellants argument is sketchy, it appears he contends that because the court placed appellant on probation, it did not "sentence" him.
Section 1202.44 creates a probation revocation fine in two instances. The first is where a defendant is placed on a conditional sentence. Conditional sentences are defined by section 1203, subdivision (a) as "the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer." A conditional sentence is the grant of informal or summary probation and such sentences are authorized only in misdemeanor cases. (People v. Glee (2000) 82 Cal.App.4th 99, 104.) Because appellant has been convicted of a felony (as well as a misdemeanor), the first clause of section 1202.44 is inapplicable to him.
The second clause of section 1202.44 applies where a court imposes "a sentence that includes a period of probation." Under appellants argument, a probation revocation fine could only be imposed where one is given a sentence that includes a period of probation. We cannot imagine, nor has appellant provided any example of, a situation in which a convicted felon is sentenced to prison and simultaneously placed on probation. Taken to its logical conclusion, appellants argument would completely negate section 1202.44 in all cases in which there is a grant of probation unless there is also a sentence imposed by the court.By sentencing a defendant to prison, however, a court is necessarily rejecting probation. By placing a defendant on probation, a court has suspended a formal prison sentence. Taking the literal approach appellant applies to the term "sentence," the probation revocation fine could never be imposed.
Appellant makes his argument without citation to legal authority other than references to sections 1202.44 and 1203. He provides no case law or legal analysis to support his interpretation of section 1202.44. His argument is at the point where we could treat the issue as waived. (See People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5.)
Superficially, appellants argument appears logical because, in the most technical legal sense, the court has suspended imposition of sentence when it places a defendant on probation. There is no judgment pending against the defendant/probationer. The probation order is considered a final judgment only for the limited purpose of taking an appeal. (People v. Howard (1997) 16 Cal.4th 1081, 1087.) The problem with appellants argument, however, is that the term "sentence" as used by the Legislature in section 1202.44 does not have the technical meaning used elsewhere in the Penal Code. Applying the term "sentence" in its technical sense makes the entire clause following this term inconsistent with itself.
We thus turn to basic principles of statutory construction. Our fundamental task in any case involving statutory interpretation is to determine the Legislatures intent so as to effectuate the purpose of the law. We begin by examining the words of the statute, giving them a plain, commonsense meaning. We do not consider statutory language in isolation but look to the entire substance of the statute to determine the scope and purpose of the provision. We construe words in context. We must harmonize the various parts of a statutory enactment by considering the particular clause or section in the context of the statutory framework as a whole. (People v. Murphy (2001) 25 Cal.4th 136, 142.)
As we note above, appellants literal reading of the term "sentence" in section 1202.44 would exclude probation revocation fines in every case in which one convicted of a felony is placed on probation. Such a construction leads to a legal absurdity clearly not intended by the Legislature when it passed section 1202.44. To effectuate the purpose of the statute, and to harmonize the meaning of other statutory provisions in addition to section 1202.44, we read the word "sentence" in the statute to have the more general, less technical, meaning of the presence of a defendant in court for a sentencing hearing.
As so harmonized, the statute is referring to the process of sentencing a defendant during a sentencing hearing, not to the literal imposition of a sentence, when it states that a court is imposing "a sentence that includes a period of probation." We therefore reject appellants contention that the probation revocation fine is inapplicable to his case. We note, however, that this fine is itself, a conditional fine. It is ordered provisionally in the event, and only in the event, that appellant violates the terms and conditions of his probation and probation is revoked.
DISPOSITION
The judgment is affirmed.