P. v. Traylor
Filed 1/31/14 P. v. Traylor
CA6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
AEVRA SHAEFONA
TRAYLOR,
Defendant and Appellant.
H039623
(Santa Clara County
Super. Ct. No.
C1080918)
Defendant
Aevra Shaefona Traylor appeals from a judgment
entered after she admitted a probation violation and her
in which no issues are raised and asks this court for an independent review of
the record as required by
(Wende). Counsel has declared that defendant was
notified that no issues were being raised by counsel on appeal, and that an
independent review under Wende was
being requested. We notified defendant
of her right to submit a written argument on her own behalf. Defendant has filed a supplemental letter
brief arguing that the two-year term in county jail imposed by the trial court
was overly harsh, that the judge failed to take her
consideration during sentencing, and that she did not intend to violate her
probation.
Pursuant
to Wende, we reviewed the
issues regarding the imposition of a parole revocation restitution fine and a
probation revocation restitution fine.
We asked both parties to file supplemental
letter briefs addressing these issues.
We modify the judgment and affirm.
A
complaint was filed on June 29, 2010, charging
defendant with one count of grand theft (Pen. Code,
§§ 484, 487, subd. (a)), two counts of forgery (§ 470, subd. (d)), and one
count of attempted grand theft (§§ 664, 484, 487, subd. (a)). The underlying facts are not included in the
record on appeal, but the petition to modify probation states that the charges
stem from defendant and her codefendant’s deposit of a counterfeit check.
Defendant
pleaded no contest to the count of grand theft (§§ 484, 487, subd. (a)) and
forgery (§ 470, subd. (d)) on February 1, 2011. Defendant’s counsel stipulated that there was
a factual basis for the plea in the investigative
reports. The trial court suspended
imposition of sentence and placed defendant on felony probation for three years
under various terms and conditions, including that she pay $2,500 restitution
to Citibank and serve 45 days in county jail. The trial court also imposed a $200
restitution fund fine.
The
probation department filed a petition to modify the terms of defendant’s probation,
which was set for a hearing on July 19, 2012. The petition alleged the following: (1) defendant had been convicted of violating
section 245, subdivision (a)(1) (assault with a deadly weapon or great bodily
injury) in Alameda County; (2) she had been arrested for violating section 470,
subdivision (a) (forgery), section 470a
(possession of a driver’s license to commit forgery), section 459 (burglary)
and Health and Safety Code section 11350, subdivision (a) (possession of a
controlled substance) in Oakland; (3) she had failed to report to the probation
department within three days of her release; (4) she had failed to avail
herself to searches; (5) she had failed to report for scheduled office
appointments on April 23, 2012 and May 24, 2012; and (6) she had failed to
report and maintain contact with the probation department. The petition further alleged that defendant
had failed to make payments toward victim restitution.
Defendant
admitted the probation violation on April 18, 2013.
The trial court sentenced her under
section 1170, subdivision (h) to a term of two years in county jail for the
count of grand theft (§§ 484, 487, subd. (a)), concurrent to a term of two
years in county jail for the count of forgery (§ 470, subd. (d)). The court awarded defendant 76 days of
credits, including 38 days custody credit and 38 days conduct credit. The court also imposed a “$200 restitution
fund fine,†which was reflected in the abstract of judgment as imposed under
section 1202.45. Defendant appealed.
Defendant’
We
first address the arguments that defendant sets forth in her letter brief filed
on September 3,
2013.
Defendant contends that the trial court erred in revoking her probation. However, a sentencing court’s discretion to
revoke probation after finding a violation of probation is very broad and is
reviewed on appeal for an abuse of discretion.
(People v. Rodriguez (1990) 51
Cal.3d 437, 443.) Defendant’s argument
on this point fails, as she admitted violating probation and has not shown that
the trial court acted in an arbitrary or capricious manner, or exceeded the
bounds of all reason when it revoked her probation.
Next,
defendant argues that the two-year term in county jail imposed by the trial
court under section 1170, subdivision (h) was overly “harsh,†because she had
only violated her probation once. Under
section 1170, subdivision (h), the middle terms for her convictions of felony grand
theft and felony forgery would be two years under section 1170, subdivision (h). The trial court judge imposed the middle term
of two years in county jail for the count of felony grand theft concurrent to
the middle term of two years in county jail for the count of forgery. Defendant did not object to the imposition of
the sentence; therefore, she has forfeited the claim on appeal. (People
v. Scott (1994) 9 Cal.4th 331, 353.)
Lastly,
defendant argues that her case should have been seen by a “mental health judgeâ€
and that the trial court failed to take her mental health problems into account
during sentencing. However, she does not
cite to any documentation in the record that shows she suffers from mental
health problems, and there is no evidence that suggests she suffered from
mental health problems that would have affected her competency. Defendant was represented by counsel below,
and her counsel did not raise her mental health as an issue. The trial court also did not raise her mental
health or incompetence as an issue. (§
1368.) We therefore reject defendant’s
argument on this point.
Fines
Upon
review of the record, we find two errors regarding fines that we must correct. We asked both parties to file supplemental
letter briefs addressing the errors. After
consideration of their briefs, we first conclude that we must modify the abstract
of judgment to reflect the imposition of a mandatory probation revocation
restitution fine. Section 1202.4,
subdivision (b) provides that “[i]n every case where a person is convicted of a
crime, the court shall impose a separate and additional restitution fine . . . .†This fine can only be imposed at the time of
conviction when probation is first granted.
(People v. Chambers (1998) 65
Cal.App.4th 819, 822.) A $200
restitution fund fine under section 1202.4, subdivision (b), and a matching
suspended probation revocation restitution fine under section 1202.44 were
imposed when defendant pleaded no contest to the offenses in February 2011.
During the sentencing hearing following
defendant’s admission of a probation violation, the trial court imposed a “$200
restitution fund fine.â€
name="_ftnref5" title="">[5] There is no mention in the abstract of
judgment of the previously suspended $200 probation revocation restitution fine
under section 1202.44. A restitution
fine imposed when probation is granted survives the revocation of
probation. (People v. Chambers, supra,
65 Cal.App.4th at p. 822.) The $200
suspended probation revocation restitution fine under section 1202.44 should be
reflected as due because defendant’s probation was revoked.
Defendant
argues that we should not correct the judgment to reflect the $200 probation
revocation restitution fine under section 1202.44 because such a correction
would increase her punishment. We
disagree. As explained, the trial court
imposed a probation revocation restitution fine in February 2011 when probation
was first granted. This fine survived
the revocation of probation; it does not increase defendant’s punishment.
Additionally,
as conceded by both defendant and the People, we must modify the abstract of
judgment to strike the reference to a $200 restitution fine under section 1202.45.
At the time defendant committed her
underlying offenses in 2010, section 1202.45 provided that trial courts shall
impose a parole revocation restitution fine for defendants who are convicted of
a crime and whose sentence includes a period of parole. (Stats. 2007, ch. 302, § 15.) Section 1202.45 was amended in 2012 to add
subdivision (b) and now also provides that trial courts shall impose a
postrelease community supervision fine for those defendants who are subject to
postrelease community supervision. (§
1202.45, subd. (b); Stats. 2012, ch. 762, § 1.)
Defendant was sentenced to a term in county jail and will not be subject
to a period of parole. (
664, 671-672.) Furthermore, section
1202.45 was amended to add the provision providing for postrelease community
supervision fines after defendant committed the crimes giving rise to her
sentence. Assessing a postrelease
community supervision fine against her would violate ex post facto
principles. (See People v. Flores (2009) 176 Cal.App.4th 1171, 1181-1182;
People v. Callejas (2000) 85 Cal.App.4th
667, 669, 678.) Since the trial court
could not have imposed either a parole revocation restitution fine or a
postrelease community supervision fine under section 1202.45, the abstract of
judgment must be amended to strike the reference to these fines.
Pursuant
to Wende, supra, 25 Cal.3d 436 and People
v. Kelly (2006) 40 Cal.4th 106, 110, we have considered defendant’s letter
brief and have reviewed the record on appeal.
We find no other arguable issues.
The
trial court is directed to amend the abstract of judgment and the minute order to
reflect that a $200 probation revocation restitution fine under Penal Code section
1202.44 is now due. The abstract of
judgment and minute order are further amended to strike the $200 fine under Penal
Code section 1202.45. The clerk of the
superior court is directed to forward a copy of the amended abstract of
judgment to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing,
P.J.
Márquez, J.
This court initially sent a letter to defendant advising her that we would be
treating the brief filed by her counsel under the standards enunciated in
496. On September 9, 2013, defendant
filed a request for reconsideration asking this court to conduct an independent
review of the record pursuant to Wende,
supra, 25 Cal.3d 436. This court granted the motion for
reconsideration on September 24, 2013.
Further unspecified statutory references are to the Penal Code.
