P. v. Smith

Filed 10/17/06 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

On April 12, 2002, Nicholas Wayne Smith pleaded guilty to possession of marijuana for sale. (Health & Saf., § 11359.) The trial court suspended imposition of sentence and granted three years' probation. It later revoked probation and imposed a sentence of two years in state prison because appellant failed to pay $270 in restitution, left the state without permission and was arrested in Nevada for cocaine trafficking. Appellant challenges the order revoking probation and imposing the prison sentence because, he contends, the term of his probation was improperly extended. He further contends the trial court erred when it required him to provide a DNA sample because the statute imposing that requirement was enacted by voter initiative after the date of his 2002 conviction and is not retroactive. We affirm.

Facts

On April 12, 2002, appellant Nicholas Wayne Smith pleaded guilty to possession of marijuana for sale in violation of Health & Safety Code section 11359. The trial court suspended imposition of sentence and granted three years' probation on the condition, among others, that appellant pay $335 in restitution fines, fees and assessments.

In January 2005, appellant was referred for a probation violation hearing because he still owed $270 in restitution. Appellant failed to appear at the February 2, 2005 probation revocation hearing. The trial court revoked probation for that reason and issued a bench warrant for appellant's arrest. Appellant was taken into custody on July 25, 2005. On July 26, he admitted the probation violation. He also admitted that he had the ability to pay the $270 he then owed. The trial court reinstated probation and extended the probationary term to October 24, 2005, or until all payments were made. Appellant made no payments.

In September 2005, he was referred for a second probation violation hearing after he was arrested in Nevada for cocaine trafficking. Appellant remained in custody until the probation violation hearing on December 5, 2005. At the conclusion of that hearing, the trial court revoked probation and ordered appellant to serve two years in state prison, provide DNA specimens and to pay $400 in restitution and probation revocation fines.

Discussion

Appellant contends the trial court erred when it sentenced him to state prison because the term of his probation expired on April 11, 2005, before his arrest in Nevada. He contends the trial court lacked jurisdiction to extend the term to October 24, 2005, because no change of circumstances had occurred to justify the modification. We disagree.

Penal Code section 1203.1, subdivision (a)[1] permits the trial court to suspend imposition or execution of a felony sentence and to grant probation "for a period of time not exceeding the maximum possible term of the sentence . . . ." Where the maximum term of the sentence is five years or less, then probation "may, in the discretion of the court, continue for not over five years." (Id.) The trial "court may revoke or modify a term of probation at any time before the expiration of that term. (§ 1203.3.) This power to modify includes the power to extend the probationary term." (People v. Cookson (1991) 54 Cal.3d 1091, 1095.) Before the trial court has jurisdiction to extend or modify probation, however, a change in circumstances must have occurred. (Id.)

The change of circumstances was that appellant willfully failed to pay $270 in restitution and other assessments before the original probationary term expired on April 12, 2005. He also failed to appear at the probation violation hearing on February 1, 2005, tolling the term of his probation until his next court appearance on July 26, 2005. (§ 1202.2, subd. (a).) Appellant admitted these facts when he appeared at the July 26 hearing. Because appellant had the ability to pay restitution and willfully failed to do so, the trial court properly reinstated probation and extended the term to October 24, 2005. (People v. Medeiros (1994) 25 Cal.App.4th 1260, 1267.) Thus, appellant was on probation at the time of his September 2005 arrest. After that violation, the trial court properly exercised its discretion to revoke probation and sentence appellant to state prison.

Appellant next contends the trial court erred when it required him to provide a DNA sample because he would not have been required to provide such a sample at the time of his conviction in 2002 and the statute authorizing collection of DNA samples is not retroactive. We are not persuaded.

Section 296.1, subdivision (a)(2)(A) requires the collection of DNA samples from any person "who is imprisoned or confined or placed in a state correctional institution . . . after a conviction of any felony or misdemeanor offense . . . [if] (i) [t]he person has a record of any past or present conviction . . . of a qualifying offense described in subdivision (a) of Section 296 . . . ;" and the Department of Justice does not already have the person's DNA sample. The qualifying offenses described in section 296, subdivision (a) include "any felony offense . . . ." (§ 296, subd. (a)(1).)

These statutes were in effect when appellant was sentenced to state prison in 2005. They are not being "retroactively" applied to him because the event that triggers his obligation to provide the samples -- his imprisonment in a state correctional institution -- occurred after their effective date. (People v. Espana (2006) 137 Cal.App.4th 549, 552-553.) The application of the statutes to a person convicted before but imprisoned after their effective date does not raise ex post facto concerns because the collection of DNA samples for purposes of creating a DNA data bank is not punishment. (Id. at pp. 553, 555; see also Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556, 1562, overruled on another ground in Ferguson v. City of Charleston (2001) 532 U.S. 67 [149 L.Ed.2d 205] and City of Indianapolis v. Edmond (2000) 531 U.S. 32 [148 L.Ed.2d 333] [Oregon statute requiring sex offenders to provide DNA samples is not intended to punish and does not violate ex post facto clause].)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, A.P.J.

We concur:

COFFEE, J.

PERREN, J.

Mark Arnold, Judge

Superior Court County of Los Angeles

______________________________

William Flenniken, Jr., 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 and Ana R. Duarte, Supervising Deputy Attorneys General, Deborah J. Chuang, Deputy Attorney General, for Plaintiff and Respondent.

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