P. v. Harris
Filed 6/18/13 P. v. Harris CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DARROLYNN PATRICIA HARRIS,
Defendant and
Appellant.
H038155
(Monterey
County
Super. Ct.
Nos. SS101403A,
SS102580A)
Defendant
Darrolynn Patricia Harris pleaded no contest to numerous counts of
possessing prescription drugs for sale.
She was placed on probation, with execution of a 12-year sentence
suspended. After the trial court found
she violated the terms of her probation, it ordered her to serve the 12-year
sentence.
On appeal,
defendant contends the trial court erred by finding she violated her
probation. Alternatively, she contends
that the trial court abused its discretion by ordering her to serve the 12-year
prison term rather than reinstating probation.
For reasons that we will explain, we disagree with defendant’s
contentions but will modify the judgment with respect to some of the fees and
fines imposed.
Background
A. Criminal Offenses
On April 30, 2010, officers executed a
containing various amounts of hydrocodone, diazepam, Soma, and Oxycontin. They also found a pouch containing a mixture
of pills plus $855. Defendant had
prescriptions from different pharmacies.
She claimed the prescription pills were “to control her back pain due to
recent surgery.†However, she admitted
giving some pills to “friends who needed them for their pain.â€
On October 22, 2010, officers executed
another search warrant at defendant’s home.
They located numerous prescription medications, including 323 Oxycontin
pills and 479 hydrocodone pills. They also
found $2,499 in cash and plastic baggies in a dresser drawer.
B. Charges, Pleas, and Initial
Sentencing Hearing
On January 24, 2011, the District
Attorney filed two informations with charges stemming from the two searches of
defendant’s home.
In case No.
SS101403, defendant was charged with possession for sale of hydrocodone (counts
1 & 4; Health & Saf. Code, § 11351
possession of hydrocodone (count 2; § 11350, subd. (a)); and possession for
sale of diazepam (count 3; § 11375, subd. (b)(1)).
In case No.
SS102580, defendant was charged with possession for sale of
Oxycontin/oxycodone/hydrocodine (count 1; § 11351) and possession for sale
of Alprazolam (count 2; § 11375, subd. (b)).
Both
informations alleged that defendant was previously convicted of three offenses
involving possession of a controlled substance.
that defendant committed an offense while released on her own recognizance or
on bail in case No. SS101403.
(§ 12022.1.)
On July 20, 2011, defendant pleaded no
contest to all counts and admitted all special allegations in both cases, on
the condition that she receive a suspended prison sentence with felony
probation.
At the
sentencing hearing on July 29, 2011,
the trial court imposed a 12-year aggregate prison term. In case No. SS101403, it imposed the three
year midterm for count 1, struck one of the section 11370.2, subdivision (a)
allegations, imposed two consecutive three-year terms for the other two section
11370.2, subdivision (a) allegations, imposed a concurrent two-year term for
count 2, and stayed counts 3 and 4 pursuant to Penal Code section 654. In case No. SS102580, the trial court imposed
a consecutive one-year term for count 1 and a consecutive two-year term for the
on-bail enhancement.
The trial
court suspended execution of sentence, placed defendant on probation, and
imposed a number of probation conditions, including: (1) “[o]bey all lawsâ€; (2) “[n]ot use or
possess alcohol/narcotics, intoxicants, drugs, or other controlled substances
without the prescription of a physicianâ€; and (3) “[n]otify Probation of all
your doctors and the medication you are currently tak[ing]â€.
C. Probation Violation
Proceedings
On December 29, 2011, the District
Attorney filed a notice of probation violation in each case, alleging that
defendant “[p]ossessed drugs without prescriptions.†A formal probation violation hearing was held
on January 27, 2012,
concurrently with a preliminary hearing in a new case.
violation hearing.
Daniel Mejia,
a Monterey County
probation officer, was defendant’s home confinement supervisor. Defendant’s home confinement began on December 4, 2011. Between that date and December 27, 2011, defendant had several
“[t]echnical violations†of her home confinement conditions: she went to undisclosed locations; she had
visitors at her home who were not immediate family members; and she went to two
department stores without receiving permission.
Officer
Mejia went to defendant’s home on December
24, 2011 to discuss one of the home confinement program
violations. While he was there,
defendant’s two cell phones kept ringing.
Mejia confiscated the two phones and read some text messages.
On one
phone, there were several text messages from the same number, all on December 9, 2011. The first message read, “Auntie, is it okay,
I might be able to borrow some money for my neighbor? I am hurting, Auntie.†The second message, sent a minute later,
read, “Auntie, it’s Kenny. I need a
little help today if you can, just a few things for work. If you can.
I’ll have the money for you as soon as I get home. I just don’t have anyone else to ask. I am hurting, Auntie. That’s why I am asking you. You can keep one of my phones until I am
off. I’ve been off since 4:30. I
ain’t got nothing, if you could.
Thanks. If not, I’ll try to
scrape up some paper bill. Thanks.†The third message was sent about one hour
later. It read: “I’ve got the money. Call … when you are at the house.†On the other phone, there was a text message
“of people wanting to go to [defendant’s] house.â€
Although
she claimed to not know how to read or send a text message, defendant had
called back both of the text message senders.
She also had outgoing text messages on the phones.
Officer
Mejia conducted another search of defendant’s house three days later, on
December 27, 2011. He and Probation
Officer Paul Palado located pills in vitamin containers, fish oil containers,
and an Icebreakers candy container.
Defendant had previously provided Officer Mejia with prescriptions for
hydrocodeine, Valium, and Soma. However,
the containers contained oxycodone and morphine in addition to the pills for
which she had a prescription. Defendant
had not given him prescriptions for oxycodone or morphine.
City of
Marina Officer Vince Troia went to defendant’s home to do “pill
identification.†Inside a calcium
vitamin bottle, there were two ibuprofen pills, two hydrocodone pills marked
Watson 387, and two hydrocodone pills marked M357. Inside a fish oil bottle, there
were three fish oil pills and 92 hydrocodone pills marked Watson 387. Inside a Centrum Silver bottle, there were
nine Centrum pills, one hydrocodone pill marked Watson 387, and 11 ibuprofen
pills. Inside a prescription bottle for
phendimetrazine, there was one Oxycontin pill and one phendimetrazine
pill. Inside a prescription bottle for
“dakawasay,†there were two morphine pills.
Inside the Icebreakers container, there were seven hydrocodone pills
marked Watson 387, one hydrocodone pill marked Watson 853, and eight
carisoprodol (Soma) pills. Defendant
also had a recently filled prescription bottle of hydrocodone, which was almost
full.
During the
December 27, 2011 search, the officers also found two additional cell phones in
defendant’s vehicle. There were text
messages on these phones. One was sent
on the afternoon of December 24, 2011.
It read: “[Y]our pies are ready,
plus I got some V’s for you. Do you
happen to have any SS? Let me
know.†According to Officer Palado, “Vâ€
likely stood for Valium or Vicodin, and “S†likely stood for Soma.
Monterey
Police Officer Aaron Delgado opined that defendant possessed narcotics for
sale, based on the number of pills, the different types, how the pills were
packaged, the text messages, and defendant’s history.
Defendant
testified at the probation violation hearing.
She claimed she had current or past prescriptions for all of the
different pills. She had been in three
major car accidents and had undergone major back surgery. She kept pills from prior prescriptions,
because at one point she could not afford new prescriptions. She possessed a large number of hydrocodone
pills because she took six to eight per day.
She claimed that she had forgotten about putting her extra pills in the
various bottles, but she acknowledged that she had taken the bottles with her
during a recent move.
Defendant
further testified that she kept personal cell phone and a second cell phone for
calls relating to her housekeeping business.
The other two phones were just old ones she had “laying around.†She claimed she did not text message much and
that her adult children sometimes used her phones.
At the end
of the hearing, the trial court found that defendant had violated probation,
stating, “Well, I’m going to find the defendant has failed to comply with the
specific terms and conditions of her probation that she keep probation advised
of all prescription medication she had in her possession. [¶] I
also find she violated probation by failing to obey all laws, specifically that
she possessed controlled substances for sale.
[¶] Whether or not she had
adequate prescriptions is not the point, it’s whether she’s selling part or all
of her prescription medication and these text messages are simply
incriminating. [¶] There is no rational or reasonable way to
analyze those without coming to the obvious conclusion that she is selling
controlled substances. [¶] As we all know, many drug sellers use
themselves and sell to support their habits, so it would not surprise me if she
is using prescription medicine. She
probably has many physical ailments that warrant prescription medicine, she’s
also selling portions of those. [¶] Although the defendant is quite sympathetic,
her testimony, the Court did not find to be credible.â€
On March 2,
2012, the trial court revoked defendant’s probation and ordered the previously
suspended 12-year prison term to be executed.
In rejecting defendant’s request for a disposition other than execution
of the prison term, the trial court noted that defendant’s criminal history
dated back to 1977 and that she had “at least seven prior felony
convictions.†It also noted that she had
violated the conditions of the home confinement program. The trial court then stated, “She was selling
the prescription drugs. I am one hundred
percent sure of that, and that’s why we’re here today. And to color coat it any other way, it is
just not the facts.â€
Discussion
A. Probation Violation Findings
Defendant
contends the trial court erred by finding that she violated her probation by
failing to “keep probation advised of all prescription medication she had in
her possession,†since there was no such probation condition. She also argues there was insufficient
evidence to support the trial court’s finding that she failed to “obey all
laws, specifically that she possessed controlled substances for sale.â€
1. Probation Revocation
Standards and Standard of Review
“Pursuant
to Penal Code section 1203.2, subdivision (a) . . . , a court is authorized 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 . . . .’ †(People v. Rodriguez (1990) 51 Cal.3d
437, 440, fn. omitted (Rodriguez).)
“It has long been recognized that the Legislature, through this
language, intended to give trial courts very broad discretion in determining
whether a probationer has violated probation.â€
(Id. at p. 443.) The
statute thus “confer[s] great flexibility upon judges making the probation
revocation determination.†(Ibid.) A preponderance of the evidence standard is
appropriate because revocation “ ‘deprives an individual, not of the absolute
liberty to which every citizen is entitled, but only of the conditional liberty
properly dependent on observance of special . . . restrictions.’ †(People v. Coleman (1975) 13 Cal.3d
867, 877, fn. 8, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480;
see also Rodriguez, supra, 51 Cal.3d at p. 442.)
“In placing
a criminal on probation, an act of clemency and grace [citation], the state
takes a risk that the probationer may commit additional antisocial acts. Where
probation fails as a rehabilitative device, as evidenced by the probationer’s
failure to abide by the probation conditions, the state has a great interest in
being able to imprison the probationer without the burden of a new adversary
criminal trial. [Citation.]†(Rodriguez,
supra, 51 Cal.3d at p. 445.)
Consequently, “[t]he role of the trial court at a probation revocation
hearing is not to determine whether the probationer is guilty or innocent of a
crime but whether he [or she] can be safely allowed to remain in society.
[Citation.]†(People v. Monette
(1994) 25 Cal.App.4th 1572, 1575.)
“ ‘[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. . .
.’ †(Rodriguez, supra, 51 Cal.3d at p. 443.)
2. Defendant’s Failure to
Advise Probation of All Prescription Medication in Her Possession
Defendant
first contends the trial court erred by finding that she violated her probation
by failing to “keep probation advised of all prescription medication she had in
her possession.†She argues there was no
such probation condition.
Defendant
acknowledges that she was prohibited from using or possessing controlled
substances without a prescription and that she was required to notify the
Probation Department of all the medications she was “currently tak[ing].â€
However, she claims, these conditions did not prevent her from possessing old
medications for which she once had a prescription, without notifying the
Probation Department.
A probation condition must be
interpreted “on the basis of what a reasonable person would understand from the
language of the condition itself.†(
607; see also People v. Lopez (1998)
66 Cal.App.4th 615, 630-631 [probation conditions should be given a “ ‘
“reasonable and practical construction†’ â€].) In general, we may construe probation
conditions to contain terms that are “fairly implied.†(People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 (Gallo); cf. People v. Garcia
(1993) 19 Cal.App.4th 97, 102 [implication disfavored where the probation
condition implicates constitutional rights].)
Here, the
probation conditions (1) prohibited defendant from possessing medication
without a prescription and (2) required her to notify the Probation Department
of all the medications she was currently taking. The requirement that defendant have
she possessed or used is “fairly implied.â€
(Gallo, supra, 14 Cal.4th at p. 1117.) A reasonable person would understand that
defendant was prohibited from possessing any medication without a
probation of any medication she was “currently tak[ing],†a reasonable person
would understand that defendant was prohibited from possessing
Department.
We conclude
that the trial court’s determination was based on a reasonable interpretation
of the probation conditions. The record
supports its finding that defendant violated her probation by possessing
medication without a current prescription and without notifying the Probation
Department.
3. Defendant’s Failure to Obey
All Laws
Defendant
contends there was insufficient evidence
to support the trial court’s finding that she failed to “obey all laws,
specifically that she possessed controlled substances for sales.†She contends that the text messages did not
necessarily relate to the sale of controlled substances. At best, she argues, even if the text
messages were requests for drugs from third parties, there was no direct
evidence that defendant actually sold drugs to anyone.
Applying
the preponderance of the evidence
standard, the trial court reasonably determined that defendant was, more likely
than not, selling drugs. (See Rodriguez,
supra, 51 Cal.3d at p. 442.) The
record supports this determination. In
particular, the trial court heard expert testimony from Officer Delgado, who
opined that defendant possessed narcotics for sale based on the number of
pills, the different types, how the pills were packaged, the text messages, and
defendant’s history. As the trial court
found, the text messages made no sense unless they related to drug sales. The record established that defendant responded
to at least some of the text messages by calling the senders. As the trial court also found, defendant was
not credible in attempting to explain why she possessed so many pills and why
some of them were packaged in vitamin bottles.
Based on this evidence, the trial court’s finding that defendant failed
to “obey all laws,†because she possessed controlled substances for sale, was
not an abuse of discretion.
B. Execution of Prison Sentence
Defendant
contends the trial court abused its discretion by ordering execution of the
prison sentence, rather than an alternative disposition. As she points out, the trial court had
discretion to reinstate her on probation, under the same or modified
conditions. (See People v. Medina
(2001) 89 Cal.App.4th 318, 321, and cases cited.)
Defendant
argues that an alternative disposition was warranted because this was her first
violation of probation, because there was no direct evidence she was actually
engaged in unlawful activity, and because she had serious physical ailments
that led to her addiction. Defendant
also points out that she had strong support from members of her family and the
community, many of whom testified at her sentencing hearing.
On this
record, the trial court’s decision to order execution of the previously-imposed
prison sentence was not an abuse of discretion.
The trial court was “one hundred percent sure†that defendant was
engaged in drug sales. The evidence
strongly suggests that defendant was, at a minimum, possessing prescription
medication for sale – the same type of criminal conduct for which she had been
granted probation. Thus, the trial
court’s decision to revoke probation was not “arbitrary or irrational.†(People
v. Zaring (1992) 8 Cal.App.4th 362, 378.)
C. Fees and Fines
At the initial
sentencing hearing on July 29, 2011, the trial court ordered defendant to pay
fees and fines “as outlined in†the probation report. The minutes reflect imposition of the
following: a $200 restitution fine (Pen.
Code, § 1202.4, subd. (b)) as to each of the six counts, for a total of $800 in
case No. SS101403 and $400 in case No. SS102580; suspended probation revocation
fines (Pen. Code, § 1202.44) in the same amounts as the restitution fines;
criminal laboratory analysis fees (§ 11372.5, subd. (a)) of $280 for
count 1 in each case and $200 for each of the other four counts; $200 drug
program fees (§ 11372.7, subd. (a)) for each count; $40 court security fees
(Pen. Code, § 1465.8, subd. (a)(1)) for each count; and $30 criminal
conviction assessments (Gov. Code, § 70373) for each count.
At the
March 2, 2012 sentencing hearing, the trial court ordered defendant to pay “any
outstanding balance of the original restitution fines.†The trial court also imposed a $200 probation
revocation fine for each case, rather than the previously suspended amounts of
$200 per count. It imposed a suspended
$200 parole revocation fine in case No. SS102580 and a suspended $1,000 parole
revocation fine in case No. SS101403.
The
abstract of judgment reflects imposition of a $200 restitution fine (Pen.
Code, § 1202.4, subd. (b)) in each case, a $200 probation revocation
fine (Pen. Code, § 1202.44) in each case, and a suspended $200 parole
revocation fine (Pen. Code, § 1202.45) in each case. It does not reflect any drug program fees
(§ 11372.7, subd. (a)), criminal laboratory analysis fees (§ 11372.5,
subd. (a)), court security fees (Pen. Code, § 1465.8, subd. (a)(1)), or
criminal conviction assessments (Gov. Code, § 70373).
We
requested supplemental briefing to address the numerous discrepancies in the
amounts of fees and fines imposed and reflected in the record.
1. Restitution Fines,
Probation Revocation Fines, and Parole Revocation Fines
“[A]
restitution fine survive[s] the revocation of probation.†(People
v. Chambers (1998) 65 Cal.App.4th 819, 822.) Thus, the original restitution fines
“remained in force despite the revocation of probation.†(Id.
at p. 823; see also People v. Cropsey (2010)
184 Cal.App.4th 961, 965-966 (Cropsey).) Since the trial court had initially imposed
$800 in restitution fines for case No. SS101403 and $400 in restitution fines
for case No. SS102580 and nothing in the record indicates those
obligations had been satisfied in whole or in part, the trial court erred by
imposing lesser restitution fines following the revocation of defendant’s
probation. The trial court should have
simply ordered that the abstract of judgment reflect the restitution fines
previously imposed. (See
At the
March 2, 2012 sentencing hearing, the trial court was required to impose the
previously suspended probation revocation fines: $800 in case No. SS101403 and $400 in case
No. SS102580. (See People v. Guiffre (2008) 167 Cal.App.4th 430, 434.) The trial court
erred by imposing probation revocation fines of only $200 per case. Likewise, the trial court erred when it
imposed suspended parole revocation fines of only $200 per case at the March 2,
2012 hearing. It was required to impose
those fines in the same amount as the restitution fines. (Pen. Code, § 1202.45.)
We will
modify the judgment to set the restitution, probation revocation, and parole
revocation fines in accordance with the amounts set at the July 29, 2011
sentencing hearing.
2. Drug
Program and Lab Fees
There are
three issues concerning the drug program and laboratory analysis fees. First, at the March 2, 2012 sentencing
hearing, the trial court erred by failing to order that the abstract of
judgment reflect the previous imposition of these fees. (Cf. Cropsey,
supra, 184 Cal.App.4th at p. 966.)
Second, the
trial court erred by failing to stay the criminal laboratory analysis fee and
drug program fees for counts 3 and 4 in case No. SS101403, since those counts
were stayed pursuant to Penal Code section 654.
(See People v. Sharret (2011)
191 Cal.App.4th 859, 869 (Sharret);
compare People v. Vega (2005) 130
Cal.App.4th 183, 194.)
Third, the
amounts of the criminal laboratory analysis and drug program fees are
incorrect. Under section 11372.5,
subdivision (a), the criminal laboratory analysis fee is $50, and under section
11372.7, subdivision (a), the drug program fee is $150. Both fees are subject to mandatory penalty
assessments, which appear to have been included in the total amounts imposed,
but were not separately listed. (See
863-864; People v. Talibdeen (2002)
27 Cal.4th 1151, 1157; People v. Voit
(2011) 200 Cal.App.4th 1353, 1374 (Voit);
People v. High (2004) 119 Cal.App.4th
1192, 1200.)
In
seven assessments, surcharges, and penalties parasitic to an underlying
fine.†(Voit, supra, 200 Cal.App.4th at p. 1374.) This court identified them as follows: “(1) a 100 percent state penalty assessment
(§ 1464, subd. (a)(1)), (2) a 20 percent state surcharge (§ 1465.7),
(3) a 30 percent state courthouse construction penalty (Gov. Code, § 70372),
(4) a 70 percent additional penalty (Gov. Code, § 76000, subd. (a)(1)),
(5) a 20 percent additional penalty if authorized by the county board of
supervisors for emergency medical services (Gov. Code, § 76000.5, subd.
(a)(1)), (6) a 10 percent additional penalty ‘ “[F]or the purpose of
implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Actâ€
’ (Gov. Code, § 76104.6, subd. (a)(1)), and (7) a 10 percent additional
state-only penalty to finance Department of Justice forensic laboratories (Gov.
Code, § 76104.7). [Citation.]†(Voit,
supra, 200 Cal.App.4th at pp. 1373-1374, fn. omitted; see also
863-864.)
The
Government Code section 76104.7 penalty was increased from 10 percent
to 30 percent subsequent to defendant’s commission of the offenses charged
in case No. SS101403 and prior to her commission of the offenses charged
in case No. SS102580. (See Stats.
2009-2010, 8th Ex. Sess., ch. 3 (A.B. 3), § 1, eff. June 10, 2010.) Thus, for the criminal laboratory fee, the
total amount imposed should have been $180 per count in case No. SS101403 and
$190 per count in case No. SS102580. For
the drug program fee, the total amount imposed should have been $540 per
count in case No. SS101403, and $570 per count in case No. SS102580. We will modify the judgment to include these
fees in the proper amounts.
3. Court Security Fees and
Criminal Conviction Assessments
At the July
29, 2011 hearing, the trial court imposed a $40 court security fee (Pen. Code,
§ 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code,
§ 70373) for each count. Although
it was unnecessary to reimpose those still extant financial obligations at the
March 2, 2012 sentencing hearing, the abstract of judgment should have
reflected the previous imposition of those fees. (Cf. Cropsey, supra, 184 Cal.App.4th
at p. 966.) We will order the abstract
amended to reflect the previous imposition of these fees.
Disposition
The
judgment is modified in the following respects:
In case No.
SS101403, by increasing the restitution fine (Pen. Code, § 1202.4, subd. (b)),
the probation revocation fine (Pen. Code, § 1202.44), and suspended parole
revocation fine (Pen. Code, § 1202.45) to $800 each, and by imposing $2,160 in
drug program fees and penalty assessments (§ 11372.7, subd. (a)) and $360 in
laboratory analysis fees and penalty assessments (§ 11372.5, subd. (a)).
In case No.
SS102580, by increasing the restitution fine (Pen. Code, § 1202.4, subd. (b)),
probation revocation fine (Pen. Code, § 1202.44), and suspended parole
revocation fine (Pen. Code, § 1202.45) to $400 each, and by imposing $1,140 in
drug program fees and penalty assessments (§ 11372.7, subd. (a)) and $380 in
laboratory analysis fees and penalty assessments (§ 11372.5, subd. (a)).
In
addition, the abstract of judgment shall reflect the imposition of $160 in
court security fees (Pen. Code, § 1465.8, subd. (a)(1)) and $120 in criminal
conviction assessments (Gov. Code, § 70373) in case No. SS101403, and it shall
reflect the imposition of $80 in court security fees (Pen. Code, § 1465.8,
subd. (a)(1)) and $60 in criminal conviction assessments (Gov. Code, § 70373)
in case No. SS102580.
The court
shall prepare an amended abstract of judgment and forward a certified copy to
the California Department of Corrections
and Rehabilitation. As modified, the
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA,
ACTING P.J.
__________________________
Márquez, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Health and Safety Code unless
otherwise indicated.
name="_ftn2" title=""> [2]
The prior convictions were: a 1983
violation of section 11352; a 1995 violation of section 11351.5; and a 1995
violation of section 11352, subdivision (a).
