P. v. Wever

Filed 10/30/06 P. v. Wever CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Modoc)

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Defendant Kenneth L. Wever entered a negotiated plea of no contest to inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))^[1] with the understanding he would receive a suspended state prison term of three years and be placed on probation. The trial court sentenced defendant accordingly. The trial court also ordered defendant to serve 270 days in county jail and issued a restraining ordered protecting defendant’s spouse and son. The trial court later revoked defendant’s probation after finding he had violated the restraining order. On appeal, defendant contends: (1) there was insufficient evidence to support the trial court’s finding that he willfully violated the restraining order; (2) even if he did willfully violate the restraining order, the violation was minor and should not have resulted in the revocation of his probation; and (3) the trial court imposed an unauthorized second restitution fine when he ordered execution of his three-year prison sentence. We shall modify the judgment with respect to fines and fees and otherwise affirm.

BACKGROUND

Underlying Offense

According to the probation officer’s report, on June 14, 2003, defendant became enraged when his wife told him she did not want to be married any longer. Defendant attacked his wife -- striking her in the face with a closed fist and a board, pulling her hair, and kicking her in the ribs. Defendant also struck their 10-year-old son. Defendant had been drinking alcohol most of the day.

The trial court sentenced defendant for the underlying offense on August 17, 2004. Defendant was sentenced to three years in state prison, with execution suspended, and placed on probation for three years. Defendant was ordered to serve 270 days in county jail, with credit for 97 days, to pay a $200 domestic violence fee as a condition of his probation, and to obey all laws. The trial court also imposed a $200 restitution fine pursuant to section 1202.4. In addition, the trial court ordered defendant to have no contact, directly or indirectly, with his wife and issued a restraining order prohibiting defendant from coming within 150 yards of his wife or son and ordering defendant not to “harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements,” or “contact (either directly or indirectly), or telephone, or send messages or mail or e-mail” his wife or son.

Probation Violations

The day before defendant was sentenced, he was found by jail officials to have ripped his jail issued blanket into four pieces. Approximately one week after defendant was sentenced, he made several harassing telephone calls to Randy Hurst, during which defendant accused Hurst of having an affair with his wife and told Hurst, “I’m going to blow your fucking head off!” Defendant was charged with misdemeanor vandalism and harassment by telephone. On October 12, 2004, defendant admitted the probation violation for harassment by telephone and failure to obey all laws and was reinstated on probation.

On March 15, 2005, a second petition for violation of probation was filed. The petition alleged defendant had violated his probation by being arrested for violating the restraining order. A contested hearing was held wherein the following facts were adduced:

Several times during February and March 2005, Kathleen Peterson, the school bus driver that transported defendant’s son to school, saw defendant near a bus stop on the bus route. Peterson picked up and dropped off defendant’s son at his home seven miles outside of Adin. One of the routine bus stops on the route was at the Adin Supply Company in Adin, at which the bus arrives around 7:20 a.m. Three or four times during a three or four week period, Peterson saw defendant across the street from that bus stop, approximately 100 to 125 feet from the bus. Defendant was standing near the Adin Supply Company, leaning up against a rail. On one occasion, defendant waived at her.

On the last occasion, defendant’s son appeared very upset. One of the children on the bus said to defendant’s son, “isn’t that your father?” When defendant’s son realized that it was his father, he put his hood over his head and slumped down in his seat. Peterson had not known defendant was the child’s father until that point.

Peterson testified that at 7:20 a.m., when the bus stops near the Adin supply Company, she has noticed some people coming and going but no one else just standing around outside. Peterson also testified that the school bus has tinted windows that render it somewhat difficult for someone outside to see the individuals inside the bus. Sometimes parents looking for the children through the windows will see them, and sometimes they will not.

Deputy Sheriff Kenneth Richardson was told by some girls that defendant had been seen at a bus stop where his son’s bus stops on the way to school. After consulting with the chief probation officer, defendant was arrested for violation of probation and the restraining order. Defendant told the deputy that he knew his son was on the bus, but he did not intend to violate the restraining order.

Court’s Revocation of Probation

Finding defendant in violation of probation for violating the restraining order, the trial court stated:

“I can imagine that [defendant] might have been lounging around that corner, to see what is going on at the early morning at 7:00 o’clock in town there. I suppose that’s possible. But I don’t’ really believe that that’s what happened.

“I think that the reasonable inference, from all of the evidence, including the statements made by [defendant] to Deputy Richardson is that he knew he wasn’t suppose to see his son. And he was trying to do it anyway, in a way that he wouldn’t get caught and held to be in violation.

“I just don’t feel that there’s any other interpretation of the evidence, given the background of this particular case, where we know the allegations were -- that supported the granting of the first TRO, that there was some pretty serious damage done to the defendant’s wife and son.”

The trial court further declined to reinstate defendant’s probation, making the following observations:

“[Defendant’s] only reason for being there must have been because he knew his son was on the bus, and he wanted to try to make some contact with his son. We don’t have any evidence of anything else.”

In an unsworn statement to the court, defendant claimed he was standing near the Adin Supply Company to talk to a woman named “Tracy” and that it was a coincidence that the bus was driving by. Defendant also stated that he had tried to have the restraining order modified so he could write to his son and eventually have contact with him. Defendant also explained that he had moved to the small town of Adin because he is of the opinion that his son needs a father and thought it would be convenient for his son to get off the bus and come over to defendant’s house to spend time and do homework.

The trial court told defendant that it simply did not accept his explanation for why he was there. The court stated: “I know the history of the case from the very beginning. I have seen the victims and the damage you did to them, both physical and mental. And I think that it’s a scary thing to think that you’re out there again, trying to undo, on your own, what the Court has told you that you can’t do.”

DISCUSSION

Revocation of Probation

Defendant contends there was insufficient evidence to support the trial court’s finding that he had willfully violated the terms of the restraining order. He argues that standing 100 to 125 feet away from the bus while it stopped to pick up children, even though he knew his son was on the bus, was not a willful violation of the order that he stay at least 150 yards away from his son and/or his son’s school.

Section 1203.2, subdivision (a) provides that a “court may revoke . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . or has subsequently committed other offenses[.]”

The People must prove by a preponderance of the evidence that a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez) [“Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence”]; accord, People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.)

On appeal, we consider “whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision[] giv[ing] great deference to the trial court and resolv[ing] all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)

Here, defendant admitted that he knew his son was on the bus, yet defendant repeatedly loitered within 125 feet of the bus route stop. The trial court specifically rejected defendant’s explanation that he was hanging around to talk to a woman, not to see his son. The trial court found that defendant knew he was not supposed to see his son, and was trying to see him anyway in a way he would not get caught. The record supports that finding. Accordingly, we conclude the trial court did not err in finding that defendant willfully violated the terms and conditions of his probation.

Defendant also claims the trial court abused its discretion by not reinstating him on probation, focusing on what he claims was a “technical” and “minor” violation. We reject his claim.

“‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909; accord, Rodriguez, supra, 51 Cal.3d at pp. 442-443, 447.)

A trial court has “great discretion” or “broad discretion” in deciding whether to revoke probation (Rodriguez, supra, 51 Cal.3d at p. 445), and “‘only 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. . . .’” (Id. at p. 443.) “Such discretion ‘implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.’ [Citation.]” (Id. at p. 445.)

“Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) There is no abuse of discretion in revoking probation if the record shows that the probationer violated the terms and conditions of his probation. (People v. Nelson (1967) 257 Cal.App.2d 282, 286.)

Defendant’s conduct shows both disregard of court orders and a threat to defendant’s son’s safety and emotional well-being. The initial grant of probation was generous considering the nature of defendant’s offense. Defendant failed to take advantage of the grant of leniency. Defendant promptly violated his probation by making harassing and threatening telephone calls from jail. Again, defendant was shown leniency and reinstated on probation. But shortly after being released from jail, defendant violated the terms of the restraining order. As previously noted by the trial court, defendant had inflicted serious injuries on his wife and son and defendant’s son was very fearful of defendant. Nevertheless, and despite the restraining order, defendant admitted he moved to the small town of Adin to be near his son. He then loitered in a place where he would see his son and his son would see him, causing his son to become upset.

Defendant’s conduct here was the result of “irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court.” (Cf. People v. Zaring (1992) 8 Cal.App.4th 362, 379.) He has demonstrated he is not amenable to conditions of probation; the court’s decision to impose the previously suspended sentence is supported by the record and was not an abuse of discretion.

II

Fines and Fees

Defendant argues the court improperly imposed a second restitution fine and domestic violence fee when it lifted the stay on the previously imposed sentence. He requests that we strike the second fine and fee as unauthorized in accordance with our decision in People v. Chambers (1998) 65 Cal.App.4th 819, 821-823 (Chambers). The People agree that the second restitution fine and domestic violence fee must be stricken. (RB 10-11)

Section 1202.4, subdivision (b) requires imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (Chambers, supra, 65 Cal.App.4th at pp. 821-823.) Consequently, imposition of a second, or duplicate, restitution fine upon revocation of probation is unauthorized and must be stricken, notwithstanding the absence of objection at sentencing. (Id. at p. 823.)

The alleged error in the present case is not as clear as it was in Chambers, where plainly the trial court ordered two separate restitution fines. Here, the amount of the restitution fine ($200) was identical to the amount previously imposed; there was no indication defendant had paid anything on the previous fine, which would make the $200 amount correct; the oral pronouncement of the fine at the latest sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects but one $200 restitution fine. Thus, it is unclear whether the trial court improperly imposed a second fine, although we observe that we generally indulge the presumption that the trial court was aware of (and properly applied) the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

On the other hand, the abstract of judgment does not specify that the restitution fine was imposed at the initial sentencing hearing held on August 17, 2004, rather than when the stay was lifted on April 18, 2005. Accordingly, we conclude the abstract of judgment should be modified to clarify that the restitution fine was imposed on August 17, 2004, the date the court originally pronounced the sentence. If this modification reflects the court’s intention at the sentencing hearing held April 18, 2005, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into minutes and abstract of judgment is a clerical function; therefore, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, modification of the abstract of judgment would be warranted to repair the unauthorized sentence.^[2] In either factual scenario, the abstract of judgment needs to be changed.

The same holds true for the $200 domestic violence fee the trial court imposed on August 17, 2004, as a condition of defendant’s probation. When a defendant convicted of domestic violence is granted probation, the terms of probation must include payment by the defendant of a domestic violence fee. (§ 1203.097, subd. (a)(5).) There is no provision authorizing the imposition of a domestic violence fee when a defendant is sentenced to prison. (See §§ 273.5, subd. (a), 1203.097, subd. (a)(5).) Accordingly, imposition of a second domestic violence fee is unauthorized. Again, it is not clear from the record whether the trial court intended to restate the domestic violence fee that was previously imposed, rather than impose a new fee. As with the restitution fine, we shall order the abstract modified to clarify that the domestic violence fee was imposed on August 17, 2004, the date the court originally pronounced the sentence.

Finally, we note an additional error. Although the trial court imposed a $200 restitution fine (§ 1202.4), it failed to impose the corresponding restitution fine in the same amount, suspended unless defendant’s parole is revoked (§ 1202.45). It appears from the record that the court mistakenly believed defendant’s conviction pre-dated the relevant penal provision. It did not.

Section 1202.45, enacted in 1995, and as set forth at the time of defendant’s offense, stated: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” Effective August 16, 2004, the statute clarified the name of the restitution fine as a “parole revocation restitution fine” and provided the fine moneys be deposited in the Restitution Fund in the State Treasury. (§ 1202.4, as amended by Stats. 2004, ch. 223, § 4, eff. Aug. 16, 2004.)

Defendant’s sentence to state prison includes a period of parole. The parole revocation restitution fine (§ 1202.45) is mandatory once the restitution fine (§ 1202.4) is imposed. Thus, the trial court’s failure to impose the parole revocation fine constitutes an unauthorized sentence. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256; People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)

Because the error constitutes an unauthorized sentence not subject to change on remand, we are compelled to correct it now. (People v. Irvin (1991) 230 Cal.App.3d 180, 190-193; cf. People v. Scott (1994) 9 Cal.4th 331, 354.) People v. Tillman (2000) 22 Cal.4th 300, does not compel a different result because it applied the waiver doctrine to a trial court’s failure to state reasons for not imposing a discretionary penalty. Here, the corresponding parole fine (§ 1202.45) was mandatory and, thus, not subject to the waiver doctrine.

DISPOSITION

The judgment is modified to specify that the $200 restitution fine (§ 1202.4) and the $200 domestic violence fee (§ 1203.097, subd. (a)(5)) were imposed on August 17, 2004, and to impose a $200 parole revocation restitution fine pursuant to section 1202.45. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy to the Department of Corrections and Rehabilitation.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2] If this is the case, we note that the court’s error was likely related to the recommendation in the probation officer’s supplemental report that the fine and fee be imposed.