Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF215561A, Patrick J. O’Hara, Judge.
Morgan Daly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Charles Anthony Nilo raises three issues in this appeal. First, he contends the trial court abused its discretion by revoking his probation for failure to pay restitution fines without first determining that he had the ability to pay. Second, Nilo argues his sentence violated his plea agreement. Third, he claims he is entitled to additional custody credits. We are not persuaded by his arguments and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On January 21, 2009, Nilo pled no contest to felony battery on a cohabitant, felony second degree burglary, misdemeanor vandalism, and misdemeanor battery. Nilo also admitted a violation of his probation in case No. 185849.
On February 18, 2009, the trial court suspended imposition of sentence and placed Nilo on three years’ formal probation. The terms of probation included serving 60 days in the county jail for the misdemeanor convictions, enrolling in a 52-week batterer’s treatment program upon release from jail and completing the program, and paying a domestic violence fee and standard felony fees and fines. The trial court ordered that the Penal Code section 1203.097 restitution fine in the amount of $400 be paid at the rate of $25 per month, and the section 1202.4 restitution fine in the amount of $200 be paid at the rate of $50 per month, payments on both to commence 30 days after Nilo’s release from jail and continuing each month thereafter until paid in full.
All further statutory references are to the Penal Code unless otherwise specified.
On March 1, 2010, Nilo’s probation officer filed an affidavit. The affidavit stated that Nilo had failed to (1) report to his probation officer as directed, (2) provide the probation department with proof that he was participating in the court-ordered batterer’s program, and (3) make any payment toward the restitution fines as ordered. Probation department records indicated that Nilo had been released from jail on September 4, 2009, and reported to the probation officer on that date.
On September 15, 2009, Nilo met with his probation officer to go over the terms of probation. At that time, Nilo was given a referral to a batterer’s program and was instructed to enroll prior to October 15 as a condition of his probation. He also was instructed to contact probation’s accounting department immediately to establish a payment plan for his fines.
The probation officer attempted to contact Nilo at his home on October 16; Nilo was not home and a business card and message were left asking Nilo to contact the officer. On that same day, Nilo contacted the probation officer and left a voice message indicating he had received the business card.
On November 3 and 24 and December 1, the probation officer attempted to contact Nilo, to no avail. On December 4, the probation officer left a business card at Nilo’s home, with an adult in the home, and asked that Nilo be told to contact the officer. Nilo called later that day, again leaving a voice message that he had received the card. On December 7, the probation officer left a message at Nilo’s home asking that Nilo contact him. There was no response to this message.
On December 22 and 23, the probation officer attempted to contact Nilo, to no avail. On December 28, the probation officer contacted Nilo at home and directed him to report to the probation department that day in order to receive a new referral for a batterer’s program. Nilo reported to the probation department on December 31, received a new referral, and was instructed to enroll in the batterer’s program prior to January 18, 2010.
On January 4, 2010, Nilo indicated he had an appointment for that day to enroll in the batterer’s program. On February 3, the probation officer went to Nilo’s home, could not make contact, and left a business card asking Nilo to call the probation officer. Nilo did not respond to this request and on February 17, 2010, the probation officer called Nilo’s home and cellular telephone numbers. Both numbers were no longer in service.
The probation department requested a warrant be issued for Nilo’s arrest as he was in violation of his terms of probation by failing to maintain contact with the probation officer, failing to participate in the batterer’s program, and failing to make any payment toward the fines.
At the May 11, 2010 hearing, Nilo’s fiancée testified that “they moved” about January 24, 2010. She also testified that Nilo did not make any payments toward the fines or sign up for the batterer’s program, because “We didn’t have no money because I had to work, seeing the doctor.”
Nilo did not present any documentation or testimony establishing his income or expenses.
The probation officer testified that Nilo did not notify the probation department of his change of address or new phone numbers and had not been in contact with the probation department since January 4, 2010. The probation officer did not recall Nilo providing any explanation for nonpayment of the fines. Nilo never provided any proof to the probation department that he had enrolled in a batterer’s program.
The trial court stated:
“In this matter I find the defendant is in violation of his probationary terms. It is simply not appropriate for the defendant not to be in reasonable contact with his probation officer. And then at the time when he does not do any of his probationary terms, to say by the way, I didn’t have money. He is in violation of his probationary terms.”
The trial court referred the matter to the probation department for a recommendation on whether Nilo should be reinstated to probation.
At the June 15, 2010, sentencing hearing, it was noted that Nilo had just turned 21 years of age, had an extensive juvenile record, had been placed on probation after pleading to two felony counts, and had violated his felony probation. The trial court sentenced Nilo to three years in prison on the first felony count, with a three-year term on the second felony count, to run concurrently. Nilo was awarded 51 days of credit, equating to the time spent in custody awaiting sentencing.
The abstract of judgment here does not accurately reflect the trial court’s oral pronouncement of sentence. Rendition of a judgment in a criminal proceeding is accomplished by the trial court as an oral pronouncement. Entering the judgment in the court minutes is a clerical function. A discrepancy between the orally pronounced judgment and as it is entered in the minutes presumably is the result of clerical error. The abstract of judgment is not controlling because it is not a judgment of conviction. By its nature, the abstract of judgment cannot add to or modify the judgment that it purports to summarize. (People v. Meza (1975) 14 Cal.3d 466, 471.) We will direct that a corrected abstract of judgment be prepared.
DISCUSSION
I. Probation Violation
The People must prove by a preponderance of the evidence that a defendant has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) When the record shows the probationer violated the terms and conditions of probation, the trial court does not abuse its discretion in revoking probation. (People v. Hawkins (1975) 44 Cal.App.3d 958, 968.)
The trial court found that Nilo willfully failed to maintain contact with his probation officer and the record supports this finding. The evidence is undisputed that Nilo failed to maintain contact with his probation officer after January 4, 2010, moved to a new address without notifying his probation officer, and disconnected both his home and cellular telephone service without providing his probation officer with any new telephone number or any means to contact him.
Nilo contends the record is inadequate to determine if the trial court would have revoked his probation in the absence of considering his failure to pay the restitution fines. We disagree. First, the record demonstrates that the trial court primarily was concerned with Nilo’s failure to maintain contact with the probation department. Second, Nilo failed to present competent evidence of an inability to pay his fines.
We agree with Nilo that section 1203.2, subdivision (a) provides that probation shall not be revoked for a defendant’s failure to make restitution unless the court determines the defendant willfully failed to pay and had the ability to pay. The trial court, however, clearly was concerned more about Nilo’s failure to maintain contact with the probation department than any failure to pay the fines.
The trial court expressed concern about Nilo’s failure to contact the probation department when requested, his moving without notifying his probation officer of a change of address, and the disconnection of phone service without providing a telephone number to the probation department. The trial court’s initial finding at the conclusion of the hearing was that “It is simply not appropriate for the defendant not to be in reasonable contact with his probation officer.”
The trial court did mention Nilo’s failure to comply with other terms of probation and noted Nilo’s claim of lack of funds, but only after emphasizing Nilo’s failure to maintain contact with his probation officer. The trial court stated, “And then at the time when he does not do any of his probationary terms, to say by the way, I didn’t have money.”
Also, Nilo had the burden of producing evidence establishing his inability to pay restitution fines. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394.) Nilo presented no evidence, either documentary or testimonial, of his income and expenses to support his claim of inability to pay. The only evidence presented of Nilo’s inability to pay was his fiancée’s conclusion that they did not have the funds to pay fines or enroll in the batterer’s course because she had to work and had doctor visits. The trial court was entitled, if it chose, to reject the fiancée’s testimony. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)
In People v. Self (1991) 233 Cal.App.3d 414, the probationer testified and provided specific information and documentation regarding her monthly income, expenses, accrued debts, and potential earning capacity. (Id. at p. 416.) In light of this detailed testimony supporting an inability to pay, the appellate court held it was an abuse of discretion for the trial court to hold the defendant in violation of probation for failure to pay restitution fines without first making an express finding of ability to pay. (Id. at p. 417.) Nilo provided no similar detailed information regarding his finances.
Regardless, because there were other factors leading to the trial court’s revocation of Nilo’s probation, the failure of the trial court to make a factual finding concerning Nilo’s ability to pay the fines and fees was harmless. Absent this error, it is unlikely the trial court’s decision to revoke Nilo’s probation would have been any different. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The trial court did not abuse its discretion in revoking probation.
II. Sentence
Nilo contends his sentence must be vacated and he must be sentenced in accordance with his plea agreement. He claims that more of the time he spent in the county jail should be applied to his felony convictions. He maintains that what the trial court did violated his plea agreement. We disagree.
Nilo’s plea agreement provided that he receive jail time and felony probation. In accordance with the plea agreement, Nilo was ordered to serve time in the county jail and was placed on three years’ felony probation. Nilo specifically was told that if he violated felony probation, the trial court “could be strict in compliance with the sentencing laws if you re-offend.”
After being placed on felony probation in accordance with his plea agreement, Nilo did not object to the trial court’s allocation of the county jail time to the various convictions.
Nilo thereafter violated probation. The plea agreement did not include a specific sentence to be served if probation was violated. As Nilo was informed, a trial court could impose a sentence in strict compliance with the sentencing laws if probation were violated.
Finally, Nilo’s fundamental premise that he is to be sentenced in accordance with a plea agreement, after being placed on probation in accordance with that plea agreement and then violating probation, is not supported by case law.
One decision, People v. Alkire (1981) 122 Cal.App.3d 119, supported Nilo’s position. That case, however, has been disapproved. In People v. Hopson (1993) 13 Cal.App.4th 1, Alkire was rejected by the very court that decided it. (Hopson, at p. 3.) Hopson quoted the rationale of People v. Bookasta (1982) 136 Cal.App.3d 296:
“A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. ‘A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever.’ [Citation.]” (Id. at pp. 299-300.)
Nilo received the benefit of his bargain once, and that is all he is entitled to. His claim fails.
III. Custody Credits
Nilo contends he is entitled to additional custody credits. We disagree. On February 18, 2009, after accepting Nilo’s plea, the trial court sentenced Nilo to serve 60 days in the county jail, 30 days for each misdemeanor conviction. The trial court specifically stated it was not sentencing on the felony convictions at that time in order to retain the ability to impose a sentence for the felony convictions if Nilo violated probation.
On May 11, 2010, the trial court revoked Nilo’s probation and sentenced him to the midterm of three years on each of the two felony convictions, with the terms to be served concurrently. The trial court awarded 102 days of custody and statutory credits for the time he had served awaiting sentencing on his probation violation.
Nilo claims he is entitled to additional credits based on his argument concerning the plea bargain. We have rejected that challenge, thus, Nilo’s claim for additional credits fails.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting the judgment as orally pronounced and forward a copy to the appropriate agencies.
WE CONCUR: DAWSON, J., DETJEN, J.