P. v. Sanders

Filed 2/28/07 P. v. Sanders CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant pleaded guilty to vandalizing his wifes car after a domestic dispute. He was placed on probation, with conditions requiring alcohol abstinence and counseling. After defendant failed repeatedly to comply with the conditions of his probation, the trial court revoked probation and sentenced him to the middle term of two years. Defendant challenges the trial courts revocation of probation and imposition of the middle term. He also argues that a $20 court security fee was unlawfully imposed. We affirm.

I. BACKGROUND

Defendant was charged in an information, filed May 31, 2001, with one count of arson (Pen. Code,  451, subd. (d)) and one count of vandalism (Pen. Code,  594, subd. (b)). The presentence report states that defendant was arrested after pouring gasoline on his wifes car, unsuccessfully attempting to set it on fire, and then breaking the cars windows with a skateboard. Following a preliminary hearing, the trial court dismissed the arson count because there was no evidence that defendant had actually committed arson, as opposed to attempting it. Defendant thereafter pleaded guilty to the charge of vandalism. Imposition of sentence was suspended, and defendant was placed on three years probation. Among other things, the terms of defendants probation barred him from contacting his wife or consuming alcohol.

Over the next four years, defendant repeatedly failed to cooperate and violated various terms of his probation. In April 2002, defendant was detained on a probation violation after a violent argument with his wife in her home. Defendant was continued on probation. In August, a bench warrant was issued after defendant failed to cooperate with probation. After a time in jail, his probation was reinstated. A bench warrant was issued again after defendant failed to appear for a progress hearing in February 2003. In May, he was picked up at his wifes home. He was continued on probation, only to end up back in court in October, when probation was again reinstated and continued. A third bench warrant was issued in November, when defendant failed to appear for a progress report. He was finally picked up in July 2004, after which his probation was extended by two years.

Several similar incidents occurred, each time followed by a continuation of defendants probation, before defendants probation was finally revoked in February 2006, after issuance of the seventh bench warrant. By that time, defendants probation had been modified six times, four as a result of noncompliance and two as a result of new incidents of domestic violence. Although the probation department recommended sentencing defendant to the mitigated term for his original offense, the court imposed the middle term of two years.

In explaining her decision to revoke probation, the trial judge noted defendant was ordered to participate in domestic violence counseling subsequent to [May 2002] and has not, in fact, complied with the terms and conditions of probation, given the failure to comply with [domestic violence] counseling, his failure to come to court at such times as required, failure to obey the dictates and orders of his probation officer, and failure to engage in alcohol counseling as required by his probation officer. The technical violation, as [defense counsel] characterizes it, the Court looks at a little differently because there have been two other incidences of alleged violations in addition to this total history of noncompliance. [] . . . [] The Court has listened to [defendants] entreaties that he be allowed to continue because of his value to his family in providing money, his support of his family, and his desire to be successful in the outer world as a self-styled businessman. . . . [] Probation is not a right; there is no defendant who is entitled by law to probation. It is a grant of probation, and it is predicated on the assumption, and in this case, a track record of compliance, which is simply not present. [] [Defendant] has been given multiple opportunities to succeed, multiple opportunities to reengage in probation supervision and participation, multiple opportunities to show the Court that he can and will abide by the conditions of probation, and there is no doubt in this Courts mind that [defendant] has not taken advantage of those opportunities, has not shown that willingness.

After reviewing defendants extensive history of repeated noncompliance with his conditions of probation, for which he had offered little excuse, the judge concluded, There comes a time . . . when enough is enough. There comes a time when the words last chance [have] the meaning last, which is no further. That time is now. [] [Defendant] is now being held accountable for his failures to perform at counseling as required, fail[ure] to comply with Court orders, and fail[ure] to comply with the conditions of his probationary grant. The defendant, certainly, . . . beyond a preponderance of the evidence has shown that he is certainly not amenable to probation supervision.

In sentencing defendant to the middle term, the court explained: The law requires that the Court review the presentence report to determine the factors in aggravation and factors in mitigation that were existent at the time the defendant was placed on probation. [] At page 11 of the presentence report, dated September 4, 2001, the Court notes that at the time probation was granted, there appear to be four circumstances in aggravation and one circumstance in mitigation. [] . . . [] In determining the sentence to be imposed, whether it should be lower term, middle term or upper term, the Court has taken into account California Rules of Court[, rules] 421 and 423 [(now rules 4.421 and 4.423)] relating to those circumstances in aggravation and mitigation which have been noted in the report. The law does not require this Court to determine whether a defendant gets an aggravated term or a mitigated term based merely upon the number of circumstances noted as to each category, if you will. [] The Court notes that the total reading of this report is such that it appears that while the charge pled to was, in fact, the vandalism of a car, that doesnt tell the total story. It appears clear that the vandalism of a car was related to an interrelatedan integral part of domestic violence which occurred between the defendant and the complaining witness . . . . Nonetheless, with regard to the circumstances in aggravation and mitigation, the Court has weighed and considered both along with other factors involving the defendants performance on probation. And while there have been two prior intervening incidences which have been noted, the Court at this time does not feel that the circumstances in aggravation outweigh the circumstances in mitigation. Therefore, the Court is going to impose the middle term.

II. DISCUSSION

Defendant contends that the trial court erred in (1) failing to modify and reinstate probation; (2) sentencing defendant to the middle term, rather than the mitigated term; and (3) imposing a $20 court security fee pursuant to Penal Code section 1465.8, which was enacted after the commission of his offense.

A. Revocation of Probation

Penal Code section 1203.2 permits the trial court to revoke a defendants probation if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . . Under this statute, [o]ur trial courts are granted great discretion in determining whether to revoke probation. [Citation.] 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.] (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The trial courts decision to revoke defendants probation is reviewed for abuse of discretion. (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.) A defendant bears a heavy burden when attempting to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)

Defendant does not contend that the trial court was without reason to believe that he violated the terms of his probation. Rather, he contends that the trial court abused its discretion because his violations were merely technical. Whatever that term may mean, defendants probation violations, which went to the very heart of his probation, fully justified its revocation. Defendant pleaded guilty to vandalizing his wifes car during an angry confrontation with her. Rather than imprisoning him for this offense, the trial court designed a probation with conditions that would address the problems embodied in his offenserequirements that he refrain from consuming alcohol, attend domestic violence counseling and alcohol abuse treatment, and stay away from his wife, with whom he regularly had criminally violent confrontations. Had defendant cooperated with these conditions, they would have kept him from the conduct that led to his original offense, thereby completing a successful probation. Instead, he violated each of them, engaging in the very conduct his probation was designed to forestall. The trial courts conclusion that defendant is certainly not amenable to probation supervision was fully supported by the evidence before it and justified the revocation of his probation.

B. Imposition of the Middle Term

Defendant contends that the trial court erred in (1) considering postconviction events in determining the sentence and (2) considering a factor in aggravation that was struck from the presentence report.

In determining the appropriate sentence to select for a particular defendant, California Rule of Court, rule 420 [(now rule 4.420)], requires the trial court to weigh factors in aggravation or mitigation. If the factors balance evenly, the middle term is to be selected. If the factors in aggravation outweigh those in mitigation, the upper term is appropriate. If the factors in mitigation outweigh those in aggravation, the converse is true. (People v. Steele (2000) 83 Cal.App.4th 212, 225, fn. omitted.)

Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may minimize or even entirely disregard mitigating factors without stating its reasons. [Citation.] [] The California Supreme Court has held:  The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.  [Citations.] (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) A single, valid factor in aggravation is sufficient to justify a sentencing choice. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

We agree with the Attorney General that defendant waived these claims by not objecting in the trial court to the trial courts alleged consideration of the improper factors. A defendant cannot challenge the exercise of sentencing discretion for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) Although defendant argues in a conclusory manner that he was not given a meaningful opportunity to object to the findings and the trial courts sentence, the record belies this claim. Defendant was given ample time and opportunity to object.

Even if we were to consider the merits of defendants claims, we would find no basis for reversal. We agree with defendant that the trial court was not permitted to consider his postconviction conduct in setting the sentence. (Cal. Rules of Court, rule 4.435; People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) After reviewing the record of sentencing, we are unpersuaded that the judge improperly considered this conduct. At the outset of her discussion, she stated, The law requires that the Court review the presentence report to determine the factors in aggravation and factors in mitigation that were existent at the time the defendant was placed on probation. [] . . . [] In determining the sentence to be imposed whether it should be lower term, middle term or upper term, the Court has taken into account California Rules of Court[, rules] 421 and 423 [(now rules 4.421 and 4.423)] relating to those circumstances in aggravation and mitigation which have been noted in the [presentence] report. This correct statement of the law, if adhered to, would have precluded consideration of defendants probationary conduct. Defendants claim that the judge departed from this standard arises from the statement, toward the end of her discussion, that, with regard to the circumstances in aggravation and mitigation, the Court has weighed and considered both along with other factors involving the defendants performance on probation. Yet the judge then noted that the most disturbing postconviction conduct, defendants two domestic violence incidents, did not affect her decision. In closing, the judge concluded that the Court at this time does not feel that the circumstances in aggravation outweigh the circumstances in mitigation. Therefore, the Court is going to impose the middle term. This indicates that, in the end, her sentencing decision was properly predicated on the preconviction factors in mitigation and aggravation. On balance, we conclude that the trial judge properly followed the law as she stated it in closing.

Defendant also contends that the trial court improperly considered a factor in aggravation that was stricken from the presentence report because it was associated with the dismissed arson count. The trial court was not restricted, however, to the factors in mitigation and aggravation specifically listed in the presentence report, and there is no question that the stricken factorthat defendant had gasoline and matches in his possession at the time of the offensewas supported by a preponderance of the evidence. Defendant did attempt to commit arson, even if that attempt was unsuccessful, resulting in a dismissal of the arson count. We therefore find no error in the trial judges consideration of this factor, if indeed she considered it.[1]

Even if it was improper for the trial court to consider the stricken factor in aggravation, we would find no basis for reversal. As noted above, to obtain reversal defendant was required to show that the sentence was irrational or arbitrary. (People v. Lai, supra, 138 Cal.App.4th at p. 1258.) It was neither. The original presentence report listed as factors in aggravation, in addition to the use of gasoline and matches, that defendant had engaged in violent conduct previously, had numerous prior convictions that were escalating in seriousness, and was on probation when he vandalized his wifes car. The only factor listed in mitigation was that defendant admitted his culpability at an early stage. Based solely on these factors, it is clear that the trial judge was justified in concluding that the factors in aggravation equally balanced those in mitigation. There was nothing irrational or arbitrary in her choice of the middle term.

C. Security Fee

When defendant was sentenced, a $20 court security fee was imposed pursuant to Penal Code section 1465.8, subdivision (a)(1), which was enacted in 2003, two years after the commission of defendants crime. (Stats. 2003, ch. 159,  25, p. 1524.) Defendant argues that the Legislature did not intend for the section 1465.8 fee to be applied retroactively. As defendant acknowledges, this issue is currently before the California Supreme Court.[2]

A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so. [Citations.] . . . Of course, when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process considerations prevent us. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1460, quoting from Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) Penal Code section 1465.8 contains no express declaration of retroactivity. Nonetheless, [i]n the absence of such an express declaration of legislative intent for retroactive application, a court may look to a variety of other factors to determine such legislative intent, such as the context of the legislation, its objective, the evils sought to be remedied, the history of the times and similar legislation, public policy, and/or contemporaneous statutory construction. (Borden v. Division of Medical Quality (1994) 30 Cal.App.4th 874, 882.)

The enactment of Penal Code section 1465.8 as part of an urgency measure (Assem. Bill No. 1759) to implement the Budget Act of 2003 by imposing a court security fee on every conviction for a criminal offense, is indicative of a legislative intent to implement the statute immediately to apply to all pending cases. (People v. Wallace (2004) 120 Cal.App.4th 867, 875.) Retroactive application of Penal Code section 1465.8 is also imperative to properly facilitate the stated objective of the legislation to ensure and maintain adequate funding for court security. The imposition of the fee upon defendant did not interfere with any antecedent rights. Defendant had no vested interest in avoiding a minimal contribution to court security that was necessitated by the charges filed against him. Although his offense was committed before the law was enacted, the proceedings for which the fee was collected took place after the effective date of the statute. Thus, the change in the law to collect a $20 fee for court security did not carry with it a propensity for unfairness that disfavors retroactive application. (See People v. Grant (1999) 20 Cal.4th 150, 157.) Defendant also did not incur additional punishment from imposition of the fee, and a substantial and disadvantageous change is prohibited only if it inflicts a greater punishment, than the law annexed to the crime, when committed. [Citation.]  Unless the consequences are penal in nature, defendants cannot rely on statutes in existence at the time of the crime, or otherwise complain of oppressive retroactive treatment. (People v. Ansell (2001) 25 Cal.4th 868, 884, italics omitted.) Accordingly, we find no error in imposition of the fee.

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1] During her explanation, the trial judge never expressly stated the mitigating and aggravating factors that she had considered, other than to say that she was considering the factors listed in the presentence report.

[2] One of the cases accepted for review, People v. Alford (2006) 137 Cal.App.4th 612, now depublished as a result of the grant of review on May 10, 2006, S142508, was a decision of this court.