Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. KA078564, BA282560, TA085852 Wade D. Olson, Judge.
Dennis L. Cava, 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, Assistant Attorney General, David C. Cook and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Anthony Leonard Newson (defendant) appeals from the judgment of conviction entered after the trial court found him in violation of probation and sentenced him to state prison. Defendant contends he must be afforded a new probation violation and sentencing hearing because the trial court failed to exercise its informed discretion. Defendant further contends the abstract of judgment must be modified to reflect the sentence imposed by the trial court.
We modify the abstract of judgment to reflect the trial court’s oral pronouncement at the sentencing hearing and affirm the judgment as modified.
BACKGROUND
In a one-count felony complaint filed on April 28, 2005, in superior court case number BA282560, the district attorney charged defendant with possession of a controlled substance in violation of Health and Safety code section 11350, subdivision (a), and further alleged, pursuant to Penal Code section 667.5, subdivision (b) that defendant suffered prior convictions for which a term was served, and that he did not remain free of custody but committed an offense resulting in a felony conviction within five years of that term. Defendant pled guilty to the charged offense, and the trial court placed him on probation under the terms and conditions set forth in Proposition 36. (§ 1210.1.) The trial court ordered defendant to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b), a $50 fee pursuant to Health and Safety Code section 11372.5, and a $200 assessment fee pursuant to section 1210.1, subdivision (a).
All further statutory references are to the Penal Code unless stated otherwise.
On June 6, 2005, the trial court found defendant in violation of the terms of his probation, but reinstated his Proposition 36 probation. On June 7, 2006, defendant admitted that he was in violation of the terms of his probation. The trial court found defendant in violation, terminated him from the Proposition 36 program, but reinstated probation on the condition that defendant serve 208 days in county jail.
On August 1, 2006, in a two-count felony complaint in superior court case number TA085852, the district attorney charged defendant with one count of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), and one count of possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a). The complaint further alleged as to count 1 that defendant had previously been convicted of eight felonies and served eight prior prison terms, within the meaning of section 667.5, subdivision (b). Defendant pled no contest to count 1 and admitted that he was previously convicted of grand theft auto in violation of section 487, subdivision (c). The trial court placed him on Proposition 36 probation for three years and dismissed the remaining count.
On May 1, 2007, in a one-count information filed in superior court case number KA078564, the district attorney charged defendant with grand theft person, in violation of section 487, subdivision (c). The information further alleged that defendant had been convicted of eight felonies and served eight separate prison terms, within the meaning of section 667.5, subdivision (b). Defendant pled no contest to the charged offense and admitted the special allegation. The trial court sentenced defendant to 11 years in state prison, consisting of the upper term of three years on the charged offense and eight one-year enhancements under section 667.5, subdivision (b). The court suspended execution of the sentence and placed defendant on formal probation for three years on the condition that he serve one year in county jail and abide by the terms of his probation. The trial court further ordered defendant to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b), a $20 court security fee pursuant to section 1465.8, subdivision (a)(1), a $200 probation revocation restitution fine pursuant to section 1202.44, a $50 lab analysis fee plus penalty assessments in the amount of $120 pursuant to Health and Safety Code section 11372.5.
On June 10, 2008, the probation officer informed the trial court that defendant appeared to be in violation of the terms of his probation because he had been arrested on May 30, 2008, for grand theft auto, in violation of section 487, subdivision (d)(1). The probation officer further stated that defendant appeared to be in violation because he had tested positive for cocaine on April 13, 15, and 17, 2008, and May 13, 2008, and failed to pay his financial obligations in case numbers TA085852 and BA282560. On July 29, 2008, the trial court revoked defendant’s probation in case number KA078564 because defendant failed to appear in court.
A probation violation hearing on all three of defendant’s felony cases was held on January 30, 2009. Angela Jackson (Jackson), a probation investigator for the Los Angeles County Probation Department testified concerning a probation officer’s report she prepared on December 16, 2008, in which she recommended that defendant’s probation be revoked. Jackson based her recommendation on defendant’s having tested positive for cocaine use on May 13, April 17, April 15, and April 13, 2008, and his failure to make payment toward the financial obligations imposed as conditions of his probation. She had interviewed defendant, who admitted using crack cocaine in March 2008 and tested positive for cocaine. During the course of her investigation, Jackson also learned that defendant had been arrested on a new charge and sent to prison for a parole violation. Defendant told Jackson that he was arrested because his nephew falsely accused him of stealing a vehicle.
At the conclusion of the hearing, the trial court found defendant in violation of his probation and executed the previously suspended 11-year state prison sentence. The court also imposed subordinate terms of eight months each for violating probation in case numbers BA282560 and TA085852.
DISCUSSION
I. Revocation of Probation
Defendant contends he must be afforded a new probation violation and sentencing hearing because the trial court failed to exercise its informed discretion. He claims the trial court found him in violation despite the prosecution’s failure to prove by a preponderance of the evidence that defendant stole his nephew’s vehicle, willfully failed to pay his financial obligations, and willfully failed to report to probation.
“Probation is not a right but an act of clemency that may be withdrawn if the privilege is abused [citation].... [P]robation may be revoked if there are reasons for the court to believe from the probation report that defendant has violated any of the terms or conditions of probation [citation].” (People v. Taylor (1968) 260 Cal.App.2d 393, 395.) An order revoking probation may properly be based on a single ground. (See Ibid.; see also § 1203.2, subd. (a).) A trial court’s probation revocation ruling is reviewed under the deferential abuse of discretion standard. (People v. Self (1991) 233 Cal.App.3d 414, 417.) “[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.)
The record discloses no abuse of discretion by the trial court. Defendant admitted that he used crack cocaine and tested positive for cocaine, and the probation officer’s report indicated that defendant had tested positive for cocaine on four separate occasions, in violation of the terms and conditions of defendant’s probation. As an order revoking probation may properly be based on a single ground (see People v. Taylor, supra, 260 Cal.App.2d at p. 395; see also § 1203.2, subd. (a)), we need not address whether additional grounds for revocation were established.
II. Abstract of Judgment
After finding defendant in violation of the terms of his probation, the trial court executed the previously stayed sentence, consisting of the high term of three years on count 1, and eight one-year terms for prior convictions, to run consecutively in case number KA078564, for a total of 11 years. The sentence also consisted of an eight-month term in case number BA282560, to run consecutively with the 11-year term, and an eight-month term in case number TA085852, to run concurrently with the 11-year term. The total sentence was thus 11 years and eight months. The abstract of judgment reflects a total term of 12 years and four months, listing both eight-month terms as consecutive subordinate terms.
When there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The abstract of judgment is modified to reflect the trial court’s oral pronouncement that the eight-month term imposed in case number TA085852 was to run concurrently with the 11-year term.
DISPOSITION
The matter is remanded to the superior court with directions to prepare a new abstract of judgment showing that the eight-month term imposed in case number TA085852 is to run concurrently with the 11-year term, for a total term of 11 years and eight months, and to forward the modified judgment to the correction officials. As modified, the judgment is affirmed.
We concur: P. J.BOREN, J. ASHMANN-GERST, J.