Opinion
2d Crim. No. B162881.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. GERARDO ISIDRO TOVAR, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
Gerardo Isidro Tovar appeals a judgment entered following his plea to driving with a blood alcohol level of .08 percent and causing bodily injury, his admission to personal infliction of great bodily injury, and his subsequent admission to violation of probation. (Veh. Code, § 23153, subd. (b); Pen. Code, § 12022.7, subd. (a).) We modify the restitution fine and parole revocation fine, but otherwise affirm.
FACTS
In the evening of May 4, 2001, Tovar was driving near Laurel Avenue in Lompoc when he struck 15-year-old Christian Jordan. Tovar drove away without rendering assistance. Approximately 45 minutes later, Tovar telephoned the Lompoc Police Department and reported the accident. A police officer who later interviewed Tovar noticed an alcohol odor on his breath. Tovar admitted that he had been drinking. He subsequently submitted to a blood alcohol test.
Jordan suffered serious head and facial injuries from the accident. The hospital intubated him because he was unconscious and not breathing. He suffered a fractured skull, swollen brain, knee injuries, and has short-term memory loss. He received 150 stitches to repair his lip, which may be permanently disfigured.
On May 15, 2001, Tovar pleaded nolo contendere to driving with a blood alcohol of .08 percent and causing injury, and he admitted personally inflicting great bodily injury. (Veh. Code, § 23153, subd. (b); § 12022.7, subd. (a).)
The trial court (Judge Huseman) suspended imposition of sentence. It granted Tovar five years probation, with terms and conditions that included confinement in the county jail and completion of an alcohol treatment program. The trial court also imposed a $200 restitution fine.
On September 21, 2002, Lompoc police officers responded to a domestic violence report at Tovars residence. Tovar admitted that he had consumed five cans of beer after work that day. The probation officer then filed a probation violation report alleging that Tovar had violated a term of probation by consuming alcohol. The report recommended that the court continue Tovar on probation with additional terms and conditions.
Tovar appeared before a different trial judge (Judge Hall) and admitted violating probation. The trial court stated that "the bottom line" was that Tovar was not "a good probationer." The trial court also stated: "The problem is that he was granted the privilege of probation . . . he almost killed an individual, then he . . . made certain promises to probation which he didnt keep." The trial court then sentenced Tovar to a prison term of five years, consisting of a two-year mid-term and a three-year enhancement for the great bodily injury allegation. It also imposed a $1000 restitution fine and a $1000 parole revocation fine.
Tovar appeals and contends the trial court erred by: 1) sentencing him to prison because it relied upon factual and legal misinformation regarding the availability of probation, and 2) imposing $1000 restitution and parole revocation fines.
DISCUSSION
I.
Tovar argues that the trial court sentenced him to state prison because it erroneously believed that it could not grant probation for crimes of great bodily injury except in "unusual cases where the interests of justice would best be served." (§ 1203, subd. (e).) He relies upon Judge Halls remark that she read the initial probation report (before Judge Huseman) wherein the probation officer opined that probation was available only "in unusual cases" where a defendant inflicts great bodily injury. Tovar contends that the trial court did not exercise informed discretion regarding continued probation because it was unaware of the extent of its discretion. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 ["An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion"].) The trial courts reliance on the misinformation, he asserts, denied him due process of law.
We do not agree with Tovars interpretation of the trial courts sentencing discussion.
As the Attorney General concedes, section 1203 does not preclude a grant of probation under the circumstances here. Indeed, the trial court (Judge Huseman) at the initial sentencing granted Tovar probation for five years. The report for sentencing of the probation violation recommends a continuation of probation.
We do not presume that the trial court denied a continuation of probation because it believed probation could be granted only in an unusual case. Sentencing for the probation violation continued for three hearings. During the hearings, the trial court remarked that it was not "comfortable" following the probation officers recommendation and that it believed "a state prison sentence" was warranted. The court added that probation would not be "effective" considering that Tovar had completed an alcohol treatment program but later violated the alcohol term of probation. During a second hearing, the trial court stated that Tovar "made certain promises to probation which he didnt keep." It also stated: "I dont see that [Tovar is] a good probationer, that he can be monitored on probation[,] safe to the community, so thats the bottom line." During the third hearing, the trial court stated that Tover "is a danger to society," having violated probation after recently completing an alcohol treatment program. The trial court did not deny a continuation of probation because it erroneously believed section 1203 generally precludes a probation grant for convictions involving great bodily injury.
II.
Tovar contends that the trial court erred in its belief that he had already been sentenced to a five-year prison term, with execution of sentence suspended. He correctly points out that he initially received a grant of probation, with pronouncement of judgment suspended. To support his contention of the trial courts reliance on misinformation, he points to Judge Halls statements that "[he] was sentenced to the state prison for . . . five years and that was suspended on certain terms and conditions" and "[h]e was actually sentenced to the Department of Corrections for five years . . . ." Tovar argues the error denied him due process of law.
We do not decide whether the trial court erroneously believed that Tovar had been sentenced to a prison term of five years with execution of sentence suspended. In view of the trial courts comments during the sentencing hearings, it is not reasonably probable that Tovar would obtain a more favorable sentence if the matter is remanded. (People v. Downey (2000) 82 Cal.App.4th 899, 917.) The trial court stated that Tovar had violated probation within several months of completing an alcohol treatment program and that he presents a danger to society. It commented that Tovar had a prior conviction for driving under the influence and that he could not be monitored on probation. The trial court stated that the victim received serious and permanent injuries and "the one thing that [Tovar] shouldnt be doing is drinking again." (Ibid.; [prison sentence proper where defendant "not committed to giving up the use of drugs" thereby presenting "a danger to himself and to the public"].)
III.
Tovar asserts that the trial court erred by imposing $1000 restitution and $1000 parole revocation fines because a $200 restitution fine had been imposed at the initial sentencing. (§§ 1202.4, subds. (b), (m), 1202.45.) The Attorney General concedes. (People v. Downey, supra, 82 Cal.App.4th 899, 921 [trial court erred by imposing a different restitution fine upon revocation of probation and sentence to prison].) The $1000 fines are improper and we modify the judgment accordingly. (Ibid.)
The judgment is modified to strike the $1000 restitution fine and the suspended $1000 parole revocation fine and to reflect a $200 restitution fine and a suspended $200 parole revocation fine. The judgment is otherwise affirmed.
We concur: YEGAN, J., PERREN, J. --------------- Notes: All further statutory references are to the Penal Code unless stated otherwise.