P. v. Castaneda

Filed 4/6/07 P. v. Castaneda CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed as modified.

Josue Castaneda appeals from a judgment and revocation of probation, after pleading guilty to one count of committing a lewd act upon a child, which resulted in a six-year prison sentence. Castaneda appeals, contending (1) the trial court abused its discretion in finding him in violation of his probation terms, and (2) the trial court erred when it imposed, pursuant to Penal Code^[1]section 1202.4, subdivision (b), a second $600 restitution fine when it had already imposed a $200 fine at the time he was granted probation.

FACTS

The underlying conviction resulted from appellant kissing and inserting his tongue into the mouth of his 10-year-old niece, with whom he shared a residence. During the kiss, appellant put his hands on her buttocks and rubbed his body against hers. Appellant admitted the incident and acknowledged he was sexually attracted to young girls.

In February 2006 appellant met Lydia P. while she was at a Laundromat with her two-year-old daughter. During their conversation, Lydia told appellant she lived with her three children. Appellant told Lydia he washed cars for a living and Lydia gave him her cell phone number because she wanted the inside of her car cleaned. Appellant called and made arrangements to go to Lydia's house to pick up the car. When he arrived to pickup the car, the children were home and he went inside the house.

After the initial visit, appellant went to Lydia's house three more times. He had not been invited and Lydia did not know when he would show up. On two of these occasions, Lydia's children were home. On one of these occasions, appellant met Lydia and her children outside the home. Appellant had a stuffed animal he wanted to give to Lydia. When she refused the gift, appellant said he wanted the two-year-old to have it. During one of appellant's visits to Lydia's home, he was sitting on the couch and allowed her two-year-old daughter to spread his legs apart and place her head between his legs. The daughter then sat between appellant and Lydia with her legs spread.

As a condition of probation, appellant was required to submit to polygraph examinations. During one of these exams, appellant withheld information from the examiner who then contacted appellant's probation officer. Shortly after the exam, appellant called the probation officer and admitted he had failed to disclose to the examiner his relationship with Lydia and interaction with her children. He admitted going to Lydia's home several times and knowing this conduct could get him in trouble and could send him to jail because he was not supposed to get close to children. Appellant knew being around the children would be a "high risk" situation, but "couldn't help it" because he fell in love with Lydia. Appellant did not tell the probation officer about Lydia because he did not want her to "misinterpret the situation."

DISSCUSSION

I

Revocation of Probation

Appellant contends the trial court abused its discretion in finding him in violation of his probation terms; specifically that appellant "[n]ot associate with minors, nor be in a place where minors congregate, unless with an adult approved by the probation officer." Appellant argues his behavior does not amount to "association" as the term is commonly understood and that Lydia's home is not a place where minors "congregate" as that term is defined.

Section 1203.2, subdivision (a), allows a trial court to revoke 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." The standard of proof required is a preponderance of the evidence supporting revocation and the trial court has "very broad discretion in determining whether a probationer has violated probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) "'[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.'" (Ibid.)

The trial court revoked appellant's probation because "he was going then deliberately to where children were congregating because that's where they live." Appellant argues that the term "where minor children congregate" should be restricted to mean places like schools, day care facilities, and parks because these are places where large numbers of children are present. If not so restricted, appellant contends he would be effectively prevented from going anywhere children are present, such as Laundromats, car washes, grocery stores, gas stations and department stores. This argument is without merit.

The probation condition does not restrict appellant from going to places necessary to satisfy his everyday needs, nor does it restrict appellant from incidental contact with children that can occur at Laundromats, car washes, gas stations and stores. The condition is aimed at protecting children and preventing appellant, without the consent of his probation officer, from interacting with children in ways or places that could lead to appellant reoffending. Having a relationship with a woman with minor children, at least at her home, is not a necessity of life for appellant and is within the court's power to restrict under a probation condition. A "condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Preventing appellant from being at the home of a woman with minor children is reasonably related to the crime of committing lewd acts upon a child. If the term "where minors congregate" is limited to places where large numbers of children are present, it could side step the intent of the restriction, to prevent future harm to children. It was not an abuse of discretion for the trial court to determine that a home, where three minor children lived, was a place "where minor children" congregate. Therefore, appellant's multiple intentional visits to this location were a violation of the condition of probation.

Additionally, appellant argues his probation should not have been revoked because he did not know his actions were in violation of the terms of his probation. He did not believe his actions constituted "associating with minors" or going "where minor congregate." We disagree. A probation condition must be "sufficiently precise for the probationer to know what is required of him and for the court to determine whether the condition has been violated." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The record reveals that appellant was aware of what was required of him and that he knew his interactions with Lydia could violate his probation conditions. Appellant was consistently reminded during meetings with his probation officer of the condition prohibiting him from associating with minors or going where they congregate. Appellant admitted he knew there could be a problem if he got too close to the children and that it was a "high-risk situation" to be around them. Appellant knowingly withheld information about his interactions with Lydia from his probation officer because he knew it could be misinterpreted. It is clear that appellant knew his actions were prohibited, but engaged in them anyway.

II

Imposition of Second Restitution Fine

Appellant contends the trial court erred when it imposed a $600 restitution fine at the probation revocation hearing. Appellant argues the second fine is not warranted because the initial $200 restitution fine survives the revocation of probation. He also argues that the $600 parole revocation fine must be reduced to $200 because it must be equal to the restitution fine. We agree.

Appellant pleaded guilty to committing a lewd act upon a child pursuant to section 288, subdivision (a). He was sentenced to six years in prison and ordered to pay a $200 restitution fine under section 1202.4, subdivision (b). Execution of the sentence was suspended and five years' probation was granted. Probation was formally revoked when the court found appellant violated a probation condition. The stay of execution on his six-year term was lifted and he was ordered to pay a $600 restitution fine pursuant to section 1202.4, subdivision (b), and a $600 parole revocation fine pursuant to section 1202.45.

Section 1202.4, subdivision (b), provides: "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." Subdivision (m) of that section states: "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." Accordingly, when a person is convicted of a felony, a restitution fine must be ordered, whether or not probation is granted, and if probation is granted, payment of that fine must be a condition of probation. ( 1202.4, subds. (b), (m).)

The People contend the $200 restitution fine was imposed as a condition of probation pursuant to section 1202.4, subdivision (m), and therefore, the trial court properly imposed the $600 restitution fine under section 1202.4, subdivision (b), when it lifted the stay of execution of sentence and reinstated the six-year prison term. However, "[s]ubdivision (m) does not contain language authorizing an additional discrete fine. . . . [S]ubdivision (m) is no more than a direction to the trial judge to impose the restitution fine mandated by subdivision (b) as a condition of probation." (People v. Arata (2004) 118 Cal.App.4th 195, 203.) This direction is necessary to prevent successful probationers from avoiding the mandatory provision in subdivision (b). (Ibid.)

Even though the restitution fine is imposed as a condition of probation, it remains in force despite the revocation of probation. (People v. Arata, supra, 118 Cal.App.4th at p. 201; People v. Chambers (1998) 65 Cal.App.4th 819, 822.) In Chambers the defendant was granted probation after pleading no contest to a first degree burglary charge and a $200 restitution fine was ordered as a condition of probation. When the trial court revoked defendant's probation four years later, it imposed a second restitution fine of $500. (People v. Chambers, supra, 65 Cal.App.4th at p. 821.) On appeal, the court reviewed the statutory scheme for imposition of restitution fines and determined that the Legislature intended for restitution fines to survive the revocation of probation because "there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. [Citation.]" (Id. at p. 822.) As a result, the court struck the second fine because the trial court was without statutory authority to impose it. (Id. at p. 823.) The facts in this case are similar to those in Chambers and we see no reason to disagree with the result. Therefore, the trial court was without statutory authority to impose the second restitution fine of $600 on appellant when revoking his probation when an initial $200 fine survived the revocation.

Despite appellant's failure to object to the imposition of the $600 restitution fine at the revocation hearing, the claim is not waived. Appellant may challenge the second fine because the fine was unauthorized. The trial court exceeded its statutory authority when it imposed the second restitution fine because the original $200 fine had already been imposed pursuant to section 1202.4, subdivision (b), when appellant was initially granted probation and the fine survives revocation. (See People v. Chambers, supra, 65 Cal.App.4th at p. 823; People v. Scott (1994) 9 Cal.4th 331, 354.) Because the parole revocation fine must be in the same amount as the restitution fine, it must be reduced to $200. ( 1202.45; People v. Smith (2001) 24 Cal.4th 849, 851, 853.)

DISPOSITION

The judgment is modified by striking the $600 restitution fine, leaving in force the $200 restitution fine originally imposed pursuant to section 1202.4, subdivision (b), and reducing to $200 the additional restitution fine imposed and stayed pursuant to section 1202.45. As modified, the judgment is affirmed.

The trial court shall enter an amended abstract of judgment reflecting the reduced restitution fines and forward a certified copy to the Department of Corrections.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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