Opinion
H024230.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. ULUI TAUFA, Defendant and Appellant.
STATEMENT OF THE CASE AND OF THE FACTS
The defendant, Ului Taufa, was charged with two felonies, grand theft (Pen. Code, § 484, former§ 487.1 [now § 487]) and fraudulent use of a contractors license number (Bus. & Prof. Code, § 7027.3); and two misdemeanors, unlicensed contracting (Bus. & Prof. Code, § 7028) and contracting for an excessive down payment (Bus. & Prof. Code, § 7159, subd. (d)). On March 31, 1993, he pleaded nolo contendere to felony fraudulent use of a contractors license number and misdemeanor unlicensed contracting in exchange for the dismissal of the remainder of the charges, a 30-day weekend work program and no state prison. The defendant was ordered to appear in court on May 21, 1993 for sentencing. This hearing was continued to June 23, 1993.
All further statutory references shall be to the Penal Code unless otherwise specified.
This court has confirmed with the trial court that the reporters transcript of the defendants plea no longer exists. The clerks transcript does not specify whether the work program was to be a part of the sentence or a condition of probation. The defendants probation report, dated May 21, 1993, lists the work program as a condition of probation.
The defendant failed to appear for his sentencing date of July 23, 1993, and a bench warrant was issued. After the defendant was apprehended the parties agreed to an amended plea bargain. The court ordered a five-year term of probation, one year of jail time and various fines and fees.
Because of the lack of clarity and existence of conflicts in the record, the nature of this jail time is examined in the following discussion.
As to victim restitution, the court noted that partial restitution of $4700 had been paid to the victim and that additional restitution was to be paid to the victim through the probation department. The victim testified that she had paid the defendant $50,000 and had paid $25,000 so far to new contractors to repair the damage done by the defendant. She had been unable to complete the repair work for lack of funds. The court advised the victim that the probation department would set a tentative restitution amount of $75,000, with the provision that the total restitution amount may include an additional $30,000. The defendant was again ordered to report to and keep in contact with probation department officials and keep them advised of his whereabouts until his conditions were satisfied. When asked by the court if he understood these conditions or had any questions, the defendant responded that he did understand and did not have any questions.
The defendants probation was summarily revoked and a bench warrant issued on September 8, 1994, because he failed to report his new address to the probation department and failed to pay any restitution. At the hearing regarding the probation violation, the defendant admitted both violations. He was sentenced to a middle term sentence of two years in state prison for felony fraudulent use of a contractors license.
DISCUSSION
I. The Original Sentence for Fraudulent use of a Contractors License did not Render the Crime a Misdemeanor
The defendant claims his original misdemeanor sentence for fraudulent use of a contractors license barred the court from imposing a felony sentence after he violated conditions of his probation. The fact that the defendant pled guilty to, was convicted of, and was sentenced to a felony charge, however, contradict his claim that he was sentenced to the misdemeanor version of this charge.
Fraudulent use of a contractors license is what is commonly known as a "wobbler" because it is punishable as either a felony or a misdemeanor. (Bus. & Prof. Code, § 7027.3; see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) If a conviction for a wobbler is sentenced as a misdemeanor then a subsequent felony sentence upon violation of probation is improper. (§ 17; People v. Balderas (1985) 41 Cal.3d 144, 203; People v. Simon (1964) 227 Cal.App.2d 849, 858.) The question of whether a wobbler offense conviction is classified as a felony or misdemeanor is determined by the sentence imposed. (§ 17; People v. Terry (1996) 47 Cal.App.4th 329, 331-332; People v. Battin (1978) 77 Cal.App.3d 635, 661, fn. 23, superceded by statute on other grounds as stated in People v. Connor (1983) 34 Cal.3d 141, 147.) A wobbler is considered to be a felony unless one of various circumstances render it a misdemeanor, such as imposition of a misdemeanor judgment. (§ 17; People v. Balderas, supra, 41 Cal.3d at p. 203, fn. 30.) Specifically, a wobbler is deemed a misdemeanor for all purposes "[a]fter a judgment imposing a punishment other than imprisonment in the state prison." (§ 17, subd. (b)(1).)
The defendants claim turns upon the determination of whether his one-year jail term was, as he argues, an imposed and executed sentence, or as urged by the People, imposition of sentence was suspended and this term was merely a condition of probation. "Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect." (§ 1203.2, subd. (c).) "When imposition of sentence is suspended, and a period of `local time serves as a condition of probation, . . . such `local time confinement cannot be considered as an imposed sentence. [Citation.]" (People v. Battin, supra, 77 Cal.App.3d 635, 660, citing People v. Esparza 253 Cal.App.2d 362, 364-365.)
The record here supports the Peoples contention that the court suspended a felony sentence. The court imposed a five-year term of probation, consistent with felony rather than misdemeanor punishment. (§§ 1203a, 1203.1.) The clerks transcripts for both the original sentencing and modification of sentence show that the defendant was convicted of a felony count of fraudulent use of a contractors license, that imposition of his sentence was suspended and that the one-year term was a condition of probation. While the courts oral pronouncement of judgment is somewhat ambiguous, it is not inconsistent with the clerks transcripts. (See People v. Mesa (1975) 14 Cal.3d 466, 471 [conflict between oral pronouncement of judgment and clerks transcript is presumed to be an error in recording of the clerks transcript].) Defense counsels description of the agreement affirmed that the defendant would be subject to a five-year term of probation, but did not specify whether the twelve-month county jail portion of the sentence was a condition of probation, and thus is also not inconsistent with the clerks transcript.
The transcript from the original sentencing shows a check mark in the box next to the comment, "The above-named defendant, being charged in a complaint on file in this Court under the above case number, and having entered a plea of . . . NOLO CONTENDERE to (a) Felony violation(s) of Ct 2 BP 7027.3 and to Misdemeanor violations of Ct 3 BP 7028 . . . ."
The clerks transcript of the modification of sentence lists a check mark in a box next to the comment, "For counts 2, 3 the defendant was placed on FELONY probation. [¶] . . . [¶] [checked box] Imposition of sentence was suspended. [¶] [checked box] Conditions of probation included [checked box] Jail Time"
"Your jail time is one year county jail. I will suspend the balance from this date forward or from the date of your release forward here . . . ."
"[Defense counsel]: It is my understanding, . . . the court would impose a sentence of [12] months county jail on [defendant] minus any credits that he has, suspend the balance of that on the condition that he be placed on probation for five years, that he make restitution . . . and that he [would be] released today."
Because the defendants sentence was declared to be a felony and imposition of sentence was suspended, the trial courts later imposition of a felony sentence upon his violation of parole was proper.
II. The Court did not Shift to Defendant the Burden of Proving his Claims Regarding his Violation of Probation
The defendant claims the trial court erred by not making a finding whether the failure to make restitution was willful and by shifting the burden of proving lack of willfulness to the defendant. The court did find the defendants failure to pay was willful after a hearing on that question. The courts remarks about the defendants burden did not show a shift of the burden of proof but rather urged the defendant to proceed with his argument.
The decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court. (People v. Covington (2000) 82 Cal.App.4th 1263, 1267; People v. Rodriguez (1990) 51 Cal.3d 437, 443.) An appellate court will not disturb the revocation of probation unless it finds that the trial court abused its discretion, that is, acted arbitrarily or capriciously and failed to base its determination on the relevant facts. (People v. Self (1991) 233 Cal.App.3d 414, 417; People v. Buford (1974) 42 Cal.App.3d 975, 985.) Due process requires that a revocation of probation must be preceded by written notice to the probationer explaining the alleged violations, disclosure of the evidence against him, and an opportunity to be heard and to present evidence in his favor before a neutral hearing body. (Black v. Romano (1985) 471 U.S. 606, 611-612; People v. Rodriguez, supra, 51 Cal.3d at p. 441.)
Probation may not be revoked for failure to pay restitution unless the court finds the probationer had the ability to pay and the failure was willful. (§ 1203.2, subd. (a); People v. Whisnenand (1995) 37 Cal.App.4th 1383, 1393-1394.) The prosecution must prove the facts underlying the violation by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d 437 at pp. 441-442; People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
The defendant initially admitted both violations and waived a formal hearing on the matter. The court had agreed to a mitigated term of 16 months in prison for the probation violation. A few weeks later, however, defense counsel disputed whether the defendant had the ability to pay and thus whether revocation was proper. At this time, the court stated, "What Im going to ask you to do, [defense counsel], is since the burden is kind of on you at this point since there was an admission, is for you to present evidence to show that . . . your client had no ability to pay any money toward the account in the last eight years." During the ensuing hearings on the violation of probation, the parties were permitted to present evidence of whether the defendants failure to pay restitution was willful.
The prosecutor produced evidence that the probation department had sent a letter to the defendant in May 1994 reminding him that he owed $39,423 in restitution and requesting that he make such payment. The defendant admitted that he had not paid any restitution since the initial $4700, had failed to maintain contact with the probation department, and testified he remained under the impression that he owed approximately $ 20,000 in restitution. He went to Oregon because his uncle had offered him a job with which he could earn the $20,000. He did not return for his sentencing date in 1993 because he had not yet earned the $20,000.
The defendants conversation with the probation department representative was hampered by his limited English skills. The representative told the defendant that she would send information to him in Portland instructing him on how to pay the restitution. The defendant usually earned approximately $ 450 to $555 a week and supported a wife and child with the help of various family members in the time since his release on probation. He did not advise the probation department of his new address when he moved from Portland to Utah. He did not pay restitution because he did not know where to send payments. The court found that the defendant failed to maintain contact with the probation department, had the ability to pay some restitution during the prior several years, and was willful in his failure to pay such restitution and maintain contact with the probation department.
The trial courts comments about the defendants burden reflected the context of the proceedings in that the defendant had already admitted that he committed both alleged violations of probation without ever claiming a lack of willfulness of the failure to pay restitution. Given that the court immediately proceeded to hear evidence from both parties, starting with the prosecutor, regarding whether the defendant had the ability to pay, its comments appear to direct the defendant that it would serve his case to provide facts in support of this argument, having never complained of such inability in the eight years since his conviction. Although the court used the word "burden," its actions demonstrated that the defendants burden was simply to make the claim of inability to pay and produce any evidence he wanted to be considered with respect to that claim. Further, the courts finding of willfulness is supported by the record. The defendants claim thus fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., BAMATTRE-MANOUKIAN, J.