Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. Nos. SCUK-CRCR-05-64696 & SCUK-CRCR-06-69896.
Swager, J.
Defendant Randy Lee Sherwood appeals the court order terminating his probation in case number 05-64696. He also appeals the imposition of a $200 probation revocation fine entered on the abstract of judgment in case number 06-69896. We affirm the order terminating probation and remand this case to the superior court with instructions to strike the probation revocation fine.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On June 16, 2005, defendant pleaded guilty to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case number 05-64696. He was placed on Proposition 36 drug probation for three years. (Pen Code, § 1210 et seq.)
On July 13, 2005, defendant was arrested on suspicion of violating his parole (Pen. Code, § 3056) and driving with a suspended or revoked license (Veh. Code, § 14601.1). A parole-probation search of his residence discovered drug paraphernalia as well as 26.5 grams of methamphetamine.
Penal Code section 3056 provides: “Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison.”
On July 21, 2005, the probation department filed its first petition for termination of probation in case number 05-64696. The petition alleged that defendant violated the terms of his probation by violating the terms of his parole, driving on a suspended license, and possessing methamphetamine with intent to sell. (Health & Saf. Code, § 11378, subd (a).)
On July 28, 2005, defendant admitted the allegations contained in the first petition. The court revoked and reinstated his drug probation with modifications. The court’s minutes indicate that the probation department withdrew the methamphetamine allegation before the court issued its order.
On February 6, 2006, a second probation violation petition was filed. The petition alleged numerous violations of the conditions of defendant’s probation, such as failure to maintain contact with his probation officer. Matters relating to his arrest on July 13, 2005, were not included among those violations.
On February 23, 2006, a complaint was filed in case number 06-69896 charging defendant with one count of felony possession of methamphetamine for sale, stemming from the probation search that followed his arrest on July 13, 2005. The complaint included the special allegation that defendant had served a prior prison term for a felony conviction. (Pen. Code, § 667.5, subd (b).)
On February 27, 2006, a third probation violation petition was filed, seeking to terminate defendant’s probation based on the count stated in case number 06-69896, and on a violation of Health and Safety Code section 11364 (possession of instrument or paraphernalia for injecting or smoking controlled substance).
On March 15, 2006, the court conducted a preliminary hearing in case number 06-69896 and ordered that defendant be held to answer. Based on the evidence presented at the hearing, the court also found defendant in violation of probation in case number 05-64696 and trailed sentencing until resolution of case number 06-69896.
On March 29, 2006, an information was filed charging defendant with possession of methamphetamine for sale on July 13, 2005. The information also included the special allegation that he had served a prior prison term.
On January 26, 2007, defendant pleaded guilty to the possession charge in case number 06-69896 and admitted the special allegation. As a part of his plea agreement, defendant also admitted the probation violation in case number 05-64696. Defendant’s attorney explained the terms of the plea as follows: “He would be admitting a violation of his probation on the first matter and then admitting the charges in this matter.” Based on defendant’s plea, the court found that he was in violation of probation as alleged by the third probation violation petition and terminated “as unsuccessful” the “Prop 36 probation.”
On June 5, 2007, after defendant was released from prison in connection with a parole violation, the court sentenced him to a total of three years in state prison in case number 06-69896. The court sentenced him to a concurrent two-year midterm for the drug offense in case number 05-64696. This appeal followed.
DISCUSSION
I. Standard of Review
Where a defendant challenges the trial court’s conclusion that he violated probation, “our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision.[] In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment.[] Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848–849, fns. omitted.)
II. Revocation of Probation
Defendant first claims that no evidence was presented at the preliminary hearing held on March 15, 2006, to establish the allegations contained in the second petition to revoke probation that was filed on February 6, 2006. We agree. From the record, it appears that the court never considered the second petition. We do not perceive the relevance of this fact, however, as we conclude the court properly revoked his probation pursuant to the third petition.
Defendant contends that the offense in case number 06-69896 could not be used as the basis to revoke his probation in connection with either the second or third petitions because his probation was revoked and reinstated on July 28, 2005, based on that same offense, which was alleged as a violation in the first petition. He submits that the probation office is not entitled to file serial petitions to revoke probation based upon the identical act alleged to constitute a violation of probation.
We might be inclined to agree with defendant’s proposition were it not for the fact that the record indicates his probation was not initially revoked and reinstated based on the offense charged in case number 06-69896. While that offense is listed in the first petition, the record indicates that the allegation was withdrawn at the hearing. The first petition lists two violations: (1) violation of term “D” with respect to the parole violation and the suspended driver’s license allegation, and (2) violation of terms “D & G” with respect to the charge of possession of methamphetamine with intent to sell. The court’s minutes of July 28, 2005, however, state that the probation department “withdraws terms D & G.” Accordingly, it appears that the court did not consider the methamphetamine charge when it revoked and reinstated defendant’s probation on July 28, 2005.
Term D states: “You shall obey all laws and orders of your probation officer.” Term G states: “You shall not use or have in your possession or under your control any marijuana, narcotics, or other illegal, restricted drugs.”
It is also clear from the reporter’s transcript of the hearing held on March 16, 2006, that the court was ruling on the third petition, not the second one. The evidence presented at that hearing was more than sufficient to justify the court’s decision to sustain the petition and revoke defendant’s probation.
The court’s ruling is also supported by defendant’s plea. The court’s minutes of the hearing held on January 26, 2007, state that he was “found in VOP based on plea in case 06-69896.” “A plea of guilty is an admission to every element of the charged offense and constitutes a conclusive admission of guilt.” (People v. Westbrook (1996) 43 Cal.App.4th 220, 223.) As noted above, defendant’s counsel clearly stated his understanding that defendant’s plea would result in a finding that he had violated his probation. Defendant himself agreed with the court’s admonition that his plea “would constitute a violation of probation in any other case that you are on probation for. And it would be a violation of probation in your other case where you are on probation.” Accordingly, substantial evidence supports the court’s decision to revoke defendant’s probation in case number 05-64696.
III. Penal Code section 1202.44 Probation Revocation Restitution Fine
Defendant contends that, while the abstract of judgment shows a Penal Code section 1202.44 probation revocation restitution fine in the amount of $200 is due in case number 06-69896, there is no record of the imposition of such a fine at any time during the proceedings. He claims that the fine must be stricken because it was never imposed. The Attorney General concedes this point. We accept this concession.
DISPOSITION
The trial court is directed to amend the abstract of judgment, striking the $200 fine imposed pursuant to Penal Code section 1202.44, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: Stein, Acting P. J., Margulies, J.