Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS011320
McAdams, J.
This appeal follows a contested probation violation hearing and subsequent execution of a previously imposed state prison sentence. Defendant argues that the court lacked the jurisdiction to revoke his probation after the expiration of the probationary period because the noticed basis for the revocation was not sustained following the contested proceedings. Defendant also argues that due process was violated by revoking his probation on the basis of an allegation that was not pleaded; that the evidence was insufficient to establish that he illegally re-entered the United States; and that imposition of the aggravated sentence violated Cunningham v. California (2007) 127 S.Ct. 856 and Blakely v. Washington (2004) 542 U.S. 296. Finally, defendant challenges the $1,400 restitution fund fine and the $20 security fee. We find merit in defendant’s challenges to the fine and fee at issue, and we therefore modify judgment by vacating the court’s orders imposing them, reducing the restitution fines to $200 and striking the $20 security fee. As modified, we affirm.
COMBINED STATEMENT OF THE CASE AND FACTS
The facts underlying defendant’s plea are not relevant to this appeal and therefore are not summarized. As pertinent, the facts underlying the probation violations are summarized above.
On May 30, 2001, pursuant to a negotiated disposition, defendant pleaded guilty to carrying a concealed weapon on his person (Pen. Code, § 12025, subd. (a)(2)) and admitted that he was an active member of a criminal street gang who committed the crime for the benefit of the gang. (§ 186.22, subd. (b)(1).) In exchange, he was promised a maximum sentence of 7 years in the state prison, suspended during an unspecified period of felony probation.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On June 27, 2001, the court amended the plea to reflect that defendant was guilty of carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)). Pursuant to the plea bargain, a number of other counts were dismissed in the furtherance of justice on the motion of the district attorney. The court sentenced defendant to prison for seven years, suspended execution of sentence and placed defendant on probation for five years. The terms of probation included the following: (1) obey all laws; (2) report to the probation officer immediately upon release, and thereafter as directed by the probation officer; (3) pay a restitution fine of $200.00 to the state restitution fund per section 1202.4; (4) make restitution of $1,400 to victim restitution in a manner to be determined by the probation officer; (5) in the event defendant is deported, probation is to revert to non-reporting, but defendant is not to re-enter the United States unless legally, and any illegal re-entry into the United States will be deemed a violation of probation. No security fee was imposed.
On April 2, 2002, the probation department filed a petition to revoke probation based on defendant’s failure to report upon his release from custody on January 31, 2002. On April 10, 2002, the court summarily revoked probation to retain jurisdiction. On June 24, 2004, defendant appeared with counsel. The prosecutor informed the court that investigation of the alleged probation violation had revealed that “defendant has been in custody. He was released from Monterey County jail directly into Federal custody and was picked up on the warrant … that was issued on the filing of the petition when they were getting ready to release him.” The petition was dismissed and probation was reinstated on the same terms and conditions.
Six months later, on December 14, 2004, the probation department filed a petition to revoke probation based on defendant “illegally reentering the United States prior to June 1, 2004.” On December 17, 2004, probation was summarily revoked to retain jurisdiction and a no-bail warrant for defendant’s arrest was issued.
On March 6 and 7, 2006, defendant’s attorney filed memoranda with the court informing it that defendant was in the custody of federal authorities at Victorville, requesting imposition of sentence pursuant to section 1203.2, and asking that the matter be placed on calendar. On March 8, 2006, the court noted that the memoranda had been filed and that “defendant has an outstanding [no-bail] bench warrant for failure to appear for a PC 1203.2 Petition issued on January 14, 2005.”
On March 10, 2006, defense counsel and the prosecutor were in court, but defendant was not present, and all that could be determined was that defendant had been sentenced to 24 months in federal custody as of an unspecified date, he was in federal custody as of February 2005, and that the no-bail bench warrant issued on December 17, 2004, was still outstanding.
On August 23, 2006 defendant appeared for arraignment on the outstanding bench warrant. Defendant was advised of the allegations in the probation revocation petition per section 1203.3.
On August 31, 2006, the district attorney filed a notice of violation of probation alleging that defendant had “[f]ailed to pay fine when due or appear in court” and “fail[ed] to pay fines and victim restitution and … register per 186.30 (a).” That same day, defendant was advised of the allegations in the August 31st petition and he was given a copy of the petition. The matter was set for formal hearing on September 15.
On September 15, 2006, defendant appeared with counsel, and a copy of the December 14, 2004 petition was given to counsel, who acknowledged already having received the district attorney’s latest petition alleging failure to pay fines and to register. The prosecutor informed the court and counsel that he would be proceeding upon the failure to pay fines and restitution and the illegal re-entry, but not the failure to register. The court asked defense counsel if he had any objection. He said “no.”
Probation Officer Aaron Kaelin was called and testified that the prior probation officer had filed a probation violation in December 2004 for illegal reentry. Mr. Kaelin’s investigation had revealed that defendant was deported on June 28, 2004, four days after his last court appearance. This information had been verified by Amy Westhaver of the Federal Government Department of Immigration, now known as the ICE, after Mr. Kaelin had provided her with defendant’s alien number and she looked it up in her database. She confirmed her findings in a letter which she faxed to Mr. Kaelin. The People introduced two exhibits: (1) a certified copy of defendant’s rap sheet; and (2) the fax from the “INS.” Mr. Kaelin also spoke with an ICE agent named Joseph Mujica who identified defendant as the person who was picked up on November 11, 2004, on an unspecified federal charge. Mujica also confirmed that defendant had been deported on June 28, 2004.
Mr. Kaelin also spoke with a person from the Federal Bureau of Prisons who confirmed that defendant had been picked up north of San Ysidro in San Diego County at 12:00 midnight on November 11, 2004, and had been in federal custody continuously since then up until the present time. Defendant was identified through his FBI number. A certified copy of defendant’s rap sheet showing “the deportation proceeds, the arrest in Imperial Beach or alien removal and various charges that Mr. Villacana received on November 11, 2004,” was admitted into evidence. According to Mr. Kaelin, defendant had an immigration hold on him at the time of the hearing and was pending deportation.
Mr. Kaelin originally said defendant was arrested “in San Bernardino” but later acknowledged that he misspoke.
Defendant presented no affirmative evidence.
The court found that defendant was not in violation of his probation based on allegations that he failed to register as a gang member and failed to pay restitution and fines. The court did find defendant in violation of his probation based on his illegal entry into the United States.
On October 13, 2006, after referring the matter for a supplemental probation report, the court rejected defense counsel’s arguments in favor of reinstatement of probation. Execution of sentence having been suspended, the court lifted the suspension and executed the previously-imposed seven-year state prison sentence. Probation was revoked and terminated. Pursuant to section 1202.4, subdivision (b)(2), the court then imposed a restitution fine of $200 multiplied by the number of years of imprisonment (7), multiplied by the number of convicted felony counts (1), for a total restitution fine of $1,400, and imposed and suspended an additional restitution fine in the same amount pursuant to section 1202.45. Defendant was also ordered to pay a security fee of $20 pursuant to section 1465.8. subdivision (a)(1). Finally, he was ordered to pay victim restitution totaling $1,400 to Abe N. and Robin H. through the California Department of Corrections and Rehabilitation.
Defendant filed a timely notice of appeal.
DISCUSSION
Substantial Evidence
Defendant argues that the court’s finding that defendant entered the United States illegally is not supported by substantial evidence. He argues that his rap sheet shows only that he was arrested by “Imperial BP Imperial Beach” for “alien removal” but that he was only convicted of lying to a U.S. officer, a fact which does not prove, by a preponderance of the evidence, that he entered the United States illegally. (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446 [preponderance of evidence is sufficient to prove probation violation].) We disagree.
There must, of course, be a factual basis to support an order revoking probation. (In re Stallings (1970) 5 Cal.App.3d 322, 334, disapproved on another point in People v. Cookson (1991) 54 Cal.3d 1091, 1098-1100). However, “[r]evocation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.” (People v. Buford (1974) 42 Cal.App.3d 975, 985.) “ ‘[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. Rodriguez (1990) 51 Cal.3d 437, 443.)
The rap sheet shows that defendant was born in Mexico and was a citizen of Mexico. It also shows that in 1999 deportation proceedings were instituted and he was removed from the United States. It was undisputed that defendant was deported shortly after his release from Monterey County Jail; in fact, probation revocation proceedings based on his failure to report after his release from custody were dismissed because he was deported. It was undisputed that there was an immigration hold on him at the time of the hearing and deportation proceedings were again underway. Given the strong evidence that defendant was not a U.S. citizen, the fact that he was arrested on U.S. soil on November 11, 2004, and had remained continuously in the U.S. (in custody) since that time, substantial evidence supported the conclusion that defendant had illegally re-entered the United States, in violation of his probation.
Lack of Notice
Defendant contends his due process rights were violated because he did not receive written notice of the basis on which his probation was ultimately revoked. He bases this contention on the fact that the December 14, 2004 written notice of a probation violation stated he illegally reentered the United States prior to June of 2004, even though it was shown at the revocation hearing that, in fact, he entered the United States illegally on November 11, 2004. He argues that his case is governed by People v. Mosley (1988) 198 Cal.App.3d 1167. We disagree.
In Mosley, the defendant was given written notice that his probation was summarily revoked on the basis of a rape allegation. That charge was simultaneously tried to a jury and to the court on the revocation of probation. During trial, evidence was adduced that defendant had been drinking alcohol, a fact which was never alleged as a basis for revocation in the notice of probation violation. The jury acquitted defendant on the rape charge but the court violated his probation for failing to abstain from alcohol consumption. This court reversed for lack of notice.
Mosley is distinguishable. Here, the gravamen of the probation violation, both as alleged and as shown, was illegal re-entry. Furthermore, it is clear from the transcript of the September 15, 2006 hearing that, prior to the start of the probation revocation hearing, the prosecutor advised the court, the defendant and defense counsel that he intended to proceed to hearing on the ground that defendant had illegally re-entered the country, without mentioning a specific date on which defendant was supposed to have done so. Defense counsel was specifically asked if he had any objection to proceeding on the bases proposed by the prosecutor. He said he did not. When the probation officer testified about his efforts to establish that defendant had illegally entered the country on November 11, 2004, defense counsel did not ask for a continuance or evince any surprise. Thus, we may reliably infer that defendant had actual notice that his probation was in revocation status on the basis of his illegal reentry into the United States during his probationary period. In our view, there was no due process error here, but if any error occurred, it was harmless beyond any reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Lack of Jurisdiction
Defendant was placed on five years’ probation in May 2001. Defendant argues that the court did not have jurisdiction to revoke his probation in September 2006, after defendant’s probationary period was over, because the court’s basis for finding defendant in violation of his probation – illegal re-entry – was different from the basis on which the court summarily revoked probation to retain jurisdiction in December 2004, namely, illegal re-entry prior to June 1, 2004. We disagree.
Defendant was placed on probation on the condition that he not re-enter the United States unless legally, and that any illegal re-entry into the United States would be deemed a violation of probation. The condition of probation was not that he refrain from illegally re-entering the United States before June 1, 2004. Thus, the precise date on which defendant re-entered the United States was not germane to the condition of his probation that he refrain from illegally re-entering the country any time during his probationary period. Furthermore, as noted above, the record on appeal establishes that, prior to the probation revocation hearing, defendant and his counsel were given notice that the prosecutor intended to proceed to hearing on the ground that defendant had illegally re-entered the United States, without specifying a date. Asked specifically if he had any objection to proceeding on the bases proposed by the prosecutor, defense counsel said he did not. “Objections not presented to the trial court cannot be raised for the first time on appeal.” (In re Michael L. (1985) 39 Cal.3d 81, 88.) The hyper-technical point raised by defendant on appeal was never argued to the trial court, and was therefore waived.
However, we also reject defendant’s claim on the merits. People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), on which defendant relies, does not compel us to find that the minor variance between the charging language and the proof adduced at the hearing warrants setting aside the revocation. In Tapia, defendant was placed on probation in July 1996 and his probation was set to expire in July 1999. Tapia was ordered to report to probation immediately upon his release from jail and he failed to do so because he was deported. The trial court summarily revoked Tapia’s probation in March 1997 and issued a bench warrant. Tapia was arrested when he returned to California in September 2000 and a probation violation hearing was held in November 2000. Tapia admitted that he did not report to his probation officer when he returned to the United States in September 2000 and that he did not show his probation officer proof, upon his return, that he was in the United States legally. The trial court found a violation, revoked probation, reinstated it and extended it to March 2003.
The People argued in Tapia that the deportation did not excuse defendant’s failure to report to the probation officer; therefore, the summary revocation tolled the running of the probation period and preserved the court’s jurisdiction over the defendant, and the trial court had jurisdiction to find a violation based on Tapia’s admission and then extend the probationary period.
The Court of Appeal disagreed and reversed. The court noted that defendant did not admit that he failed to report in March 1997, the basis for the summary revocation, or that his reentry in 2000 was illegal. Since the charged violation was not proved, his probation expired in 1999, before he reentered. “Since his probation had expired by the time he did reenter in September 2000, the trial court had no jurisdiction to extend the period of probation.” (Tapia, supra, 91 Cal.App.4th at p. 741.) The court explained that “the trial court has ‘the power and duty to summarily revoke ... probation on the information supplied by the probation officer and to issue a bench warrant as the only practical and expeditious way to bring the defendant swiftly before the court, to give him notice of the claimed violations and to afford him a hearing.’ But when it comes to the tolling contemplated by … section 1203.2, subdivision (a), and People v. DePaul [(1982)] 137 Cal.App.3d [409,] 415, it is clear that a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation. (See People v. Lewis (1992) 7 Cal.App.4th 1949, 1955 [summary revocation is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence; if probation is restored, there has, in effect, been no revocation at all].) Just as the restoration of probation erases the summary revocation, so too does the court’s failure to find a violation within the period of probation. Put another way, the jurisdiction retained by the court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation. When the court finds there has been no violation during the period of probation, there is no need for further jurisdiction. And where, as here, the term of probation has expired, the defendant is also entitled to an order discharging him from probation. (People v. Lewis, supra, 7 Cal.App.4th at pp. 1955-1956.) [¶] It follows that Tapia’s probation expired in July 1999, that the order finding him in violation is void, and that he is entitled to an order discharging him from probation.” (Id. at pp. 741-742.)
Tapia is distinguishable. There, the only evidence presented on the revocation allegation was an admission by the defendant that did not prove the allegation: Tapia was bound by his probationary terms to report to his probation officer, he was charged with failing to report to his probation officer in 1997, and he admitted only that when he returned to the United States in 2000, after his probationary term had ended, he did not report to the probation department or show a probation officer proof that he was in the U.S. legally. Here, by contrast, defendant was bound by his probationary terms to refrain from re-entering the United States illegally while on probation; he was charged with re-entering the United States on a date during his probationary period; and it was proved that he entered the United States illegally on a different date during the probationary period. The gravamen of the probation violation as alleged and as shown was that defendant entered the United States illegally during his probationary period. In our view, the court did not act arbitrarily or capriciously or in any way abuse its discretion in finding, on the basis of the evidence before it, that defendant had violated his probation when he re-entered the United States illegally on November 11, 2004. Therefore, the court did not lose jurisdiction to find defendant in violation of his probation after the probationary period had expired.
Having found that defendant had violated his probation, the court had no choice but to reinstate probation or execute the previously imposed state prison sentence. (People v. Howard (1997) 16 Cal.4th 1081.) A defendant’s inability “to comply with any terms and conditions of probation beyond the serving of any period of local incarceration imposed” because he is subject to deportation “may properly be considered by the sentencing court with all other relevant factors in exercising its discretion” on the question whether to reinstate probation. (People v. Sanchez (1987) 190 Cal.App.3d 224, 231.) No abuse of discretion appears here.
Blakely/Cunningham Error in Imposing the Aggravated Term
Defendant claims the aggravated sentence in his case violates the Sixth Amendment. (Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington, supra, 542 U.S. 296; Cunningham v. California, supra, 127 S.Ct. 856.) He argues that we may reach this issue in this appeal from an order after judgment revoking his probation (§ 1237, subd. (b)), despite the fact that judgment was entered and the sentence imposed in 2001, because a sentence that violates Blakely is unauthorized and reviewable at any time. We disagree.
Defendant’s claim is not properly before us on this appeal. When a trial court imposes a state prison sentence and suspends execution of that sentence during a probationary period, the judgment rendered is a final judgment for the purposes of appeal. (People v. Amons (2005) 125 Cal.App.4th 855, 869-870; People v. Chagolla (1984) 151 Cal.App.3d 1045, 1050-1051, cited with approval in People v. Howard, supra, 16 Cal.4th at p. 1088.) Defendant acknowledges this rule, but, relying on People v. Mancebo (2002) 27 Cal.4th 735, 749, footnote 7, argues that the Chagolla rule is of no moment because a sentence that violates Blakely and Cunningham is an unauthorized sentence that may be challenged at any time.
Mancebo cannot help defendant here because, so far as appears from that opinion, the defendant’s claim of an unauthorized sentence was raised in a timely appeal from the sentence and judgment in that case. Mancebo did not consider whether, and certainly did not hold that, the exception permitting a defendant to challenge a sentence as unauthorized on appeal swallows the rule that the sentence and judgment must be timely appealed. Here, the time for appealing the sentence imposed and judgment rendered in 2001 has long since passed.
In addition, Apprendi and Blakely and, presumably, Cunningham, cannot be the basis for a successful challenge to defendant’s aggravated sentence because defendant’s judgment and sentence became final before those cases were decided, and they cannot “retroactively invalidate the sentence imposed upon defendant by a final judgment.” (People v. Amons, supra, 125 Cal.App.4th at p. 870; In re Consiglio (2005) 128 Cal.App.4th 511, 516.) Defendant urges us to find that Amons was wrongly decided. However, we decline to do so, because we find its reasoning persuasive.
Restitution Fines
Defendant argues the court erred when it raised the restitution fine previously imposed under section 1202.4 from $200 to $1,400, and imposed a commensurate parole revocation fine pursuant to section 1202.45. He is correct.
At the time defendant was originally sentenced in 2001, the court ordered both victim restitution in the amount of $1,400, and a $200 restitution fine, pursuant to section 1202.4. The probation report indicated that two victims had suffered recoverable losses as a result of defendant’s conduct, in an amount totaling $1,400, and defendant does not challenge that order. At that time, the court could have ordered a greater restitution fine, according to the statutory formula set forth in section 1202.4, subdivision (b)(2), or based on other factors listed in the statute, but did not do so.
The version of section 1202.4 in force at the time defendant was sentenced to prison in 2006 states, in relevant part: “(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶] (2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464. [¶] (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: [¶] (A) A restitution fine in accordance with subdivision (b). [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. [¶] (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony…. [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. [¶] … [¶] (m) In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied. … (n) … Upon revocation of probation, the court shall impose restitution pursuant to this section….” (Italics added.)
In executing the previously imposed prison sentence upon revocation of probation in 2006, the court reaffirmed its victim restitution order, and purported to augment the restitution fine pursuant to the statutory formula set forth in section 1202.4, subdivision (b)(4). However, the court was powerless to modify the previously imposed sentence, either upwards or downwards, at this stage of the proceedings. “[S]ection 1203.2, subdivision (c), and rule 435(b)(2), by their terms, limit the court’s power in situations in which the court chose to impose sentence but suspended its execution pending a term of probation. On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect….” (People v. Howard, supra, 16 Cal.4th at p. 1088.) This same error was committed in People v. Chambers (1998) 65 Cal.App.4th 819 and People v. Downey, Jr. (2000) 82 Cal.App.4th 899, 921. In both cases, the courts ordered the higher fines stricken and reduced to $200. (People v. Chambers, at p. 820; People v. Downey, Jr., at p. 921.) We shall do the same.
Security Fee
Defendant argues the trial court erred in retroactively imposing a $20 security fee pursuant to section 1465.8. The People concede the security fee was improperly imposed because the trial court failed to include the fee in the pronouncement of judgment in 2001, and that we need not reach the merits of defendant’s retroactivity claim. (§ 1193; People v. Hong (1998) 64 Cal.App.4th 1071, 1076-1084.) We agree that fees and fines are part of the judgment, as discussed in Hong, and that it was not made part of the judgment here. Therefore, we express no opinion on defendant’s retroactivity claim, and we will strike the order imposing the $20 security fee.
CONCLUSION
The evidence that defendant reentered the United States illegally, in violation of his probationary terms, was sufficient to revoke his probation. Defendant’s due process right to notice of the basis of the probation violation was not offended. The court had jurisdiction to revoke defendant’s probation. Defendant’s claim of sentencing error is not cognizable on this appeal because judgment and sentence were rendered in 2001 and Blakely is not retroactive. The orders imposing $1,400 restitution and parole revocation fines pursuant to section 1202.4 and 1202.45 are vacated and the fines are reduced to $200. The order imposing a $20 security fee is vacated and the fee is stricken. As modified, the judgment is affirmed.
DISPOSITION
The judgment is modified to strike the orders imposing a $1,400 restitution fine and a suspended $1,400 parole revocation fine, and a $20 security fee, and to reflect a $200 restitution fine, a $200 suspended parole revocation, and no security fee. As modified, the judgment is affirmed. The court is directed to prepare a new abstract of judgment.
WE CONCUR: Mihara, Acting P.J., Duffy, J.
The version of this statute in effect in 2001 did not differ in any manner relevant to defendant’s claim.