P. v. Lowerison

Filed 8/21/06 P. v. Lowerison CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant John Benton Lowerison received a six-year suspended prison sentence and was placed on felony probation. The court later ordered the six-year term after appellant admitted a violation of probation. Appellant argues that we must remand for resentencing because the trial court erroneously believed it did not have the discretion to reinstate probation and because it increased a previously-ordered restitution fine when it sentenced him on the probation violation. We reject the first contention, but agree with the second.

BACKGROUND

Appellant was charged in 2003 with a felony count of receiving stolen property and was alleged to have suffered a prior conviction under the Three Strikes law. (Pen. Code, §§ 496, 1170.12; Case No. F336724.)^[1] He negotiated a plea agreement which called for the court to impose a six-year prison term (the three-year upper term, doubled), but to suspend execution of that term and grant probation. (§ 1203.1, subd. (a).)

At the change of plea hearing, the court secured waivers of appellant's constitutional rights to a jury trial, to remain silent, and to confront the witnesses against him. It also asked, "Do you understand that the way this sentence is going to be imposed, I'm not going to simply put you on three years of probation, I'm going to suspend execution of the six-year sentence. Because of the nature of that language you're sentenced to six years and the imposition or the imposition of that sentence is simply being suspended. That means if you violate probation, you're going to prison for six years. Any judge who heard you're in violation at your probation violation hearing, he will be obliged to give you six years in prison if you're found in violation. Is that your understanding?" Appellant responded, "Yes, it is." The court imposed the agreed-upon six-year sentence, suspended its execution, and placed appellant on probation. It imposed a $200 restitution fine under section 1202.4, subdivision (b).

In 2005, appellant was charged with a felony count of second degree burglary with a Three Strikes allegation. (§§ 459, 1170.12; Case No. F372024.) The People amended the information to include a misdemeanor count of automobile tampering and the parties entered into an agreement allowing appellant to plead no contest to that misdemeanor in exchange for dismissal of the burglary count. (Veh. Code, § 10852.) Appellant also agreed to admit a violation of probation in the 2003 case and was advised, "[T]he agreement is that you are prepared to have me sentence you to that stay of the six-year term." The court revoked probation and imposed the previously-suspended six-year sentence. It also "deleted" the $200 restitution fine it had imposed and ordered a fine of $1,000.

DISCUSSION

Discretion to Reinstate Probation

Appellant argues that the case must be remanded because the trial court did not understand it had the authority to reinstate probation on the 2003 case. We disagree.

A trial court granting probation may either suspend the imposition of sentence or impose sentence and suspend its execution. (§ 1203.1, subd. (a).) Section 1203.2, subdivision (a) provides that when a person is brought to court on a violation of probation, "the court may revoke and terminate such probation if the interests of justice so require . . . ." The court also has the power to modify probation, which necessarily presumes the power to reinstate it after a violation. (People v. Medina (2001) 89 Cal.App.4th 318, 321.) Probation may be reinstated even when sentence was previously imposed but suspended. (Id. at pp. 321-323.)

Here, however, the execution of the prison sentence in the 2003 case was a condition of appellant's plea agreement in his 2005 case. Appellant specifically agreed that the court would impose the previously-suspended six-year term in exchange for dismissal of the felony burglary count and Three Strikes allegation in the newer case. He has not obtained a certificate of probable cause under section 1237.5 and cannot challenge the conditions of that agreement. (See People v. Panizzon (1996) 13 Cal.4th 68, 78-79.) And even if he had obtained a certificate, he has stated no grounds that would allow him to set aside the sentence when the court was simply adhering to the agreement reached by the parties.

Restitution Fine Increase

Appellant challenges the trial court's order increasing his restitution fine from $200 to $1,000 following the revocation of probation. We agree the court lacked the power to impose an additional restitution fine.

Section 1202.4, subdivision (b)(1) provides that absent extraordinary circumstances, a restitution fine between $200 and $10,000 must be imposed in every felony case and a fine of between $100 and $1,000 must be imposed in every misdemeanor case. Subdivision (m) of that same statute provides, "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." Because the statute contemplates a single restitution fine, and because the fine remains in effect following a revocation of probation, the court lacks authority to impose an increased fine upon revocation. (People v. Arata (2004) 118 Cal.App.4th 195, 203; People v. Chambers (1998) 65 Cal.App.4th 819, 822.)

The People argue that the increased fine was permissible because it was based on the misdemeanor charge in the 2005 case and was not simply an increase of the fine that was imposed in 2003 as a condition of appellant's felony probation. But the court's comments make it clear it was amending the earlier restitution order and the abstract of judgment shows that the increased fine was imposed in connection with the 2003 case. The court set a separate restitution hearing in the 2005 misdemeanor case, further suggesting that the $1,000 restitution was fully attributable to the 2003 case.

DISPOSITION

The restitution fine under section 1202.4, subdivision (b), which was imposed in case No. F336724, is modified from $1,000 to $200, and the corresponding parole revocation fine under section 1202.45 is similarly modified to $200. The superior court shall forward a copy of the amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Laini Millar Melnick, 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, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated.