P. v. Washington

Filed 9/16/08 P. v. Washington CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Tia Fisher, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason Tran and David A Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Richard Washington was sentenced to state prison following the revocation of probation that had been ordered after an earlier conviction for assault with a deadly weapon. On appeal Washington contends the trial court erred by twice imposing a restitution fine and by failing to order a supplemental probation report prior to sentencing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Washington was arrested in 2002 after he threw a brick at another man. At his arraignment Washington entered into a negotiated plea agreement: Washington agreed to plead guilty to one count of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))^[1]and to admit he had suffered a prior serious felony conviction, assault on a peace officer ( 245, subd. (c)), within the meaning of section 667, subdivision (a)(1). In return imposition of sentence would be stayed, and Washington placed on three years formal probation on condition he serve one year in county jail. The People also agreed to dismiss the allegations Washington had suffered two serious or violent felony convictions within the meaning of the Three Strikes law.

On June 24, 2002 an Early Disposition Probation Officers Report was filed, describing Washingtons criminal record and history of mental illness and treatment. The probation officer recommended against granting probation based on Washingtons persistent violent behavior and mental instability and his prior use of a deadly weapon (see  1203, subd. (e)(2)).^[2] The probation officer concluded Washington posed a threat to the community.

In accordance with the terms of the plea agreement, on September 11, 2002 imposition of sentence was stayed; and Washington was placed on three years formal probation. As conditions of probation Washington was ordered to pay a $200 restitution fine ( 1202.4, subd. (b)), not to possess any knives or other concealable weapons and to obey all laws.

Court-ordered progress reports indicated Washington had failed to satisfy his financial obligation to the probation department. He was repeatedly admonished by the court to make payments. On June 20, 2005 Washington agreed to have his probation extended to September 10, 2007 to have more time to pay the outstanding balance. His most recent progress report showed, as of May 9, 2006, Washington had a $1,407 balance due to the probation department.

Washington was arrested once again on June 10, 2006 after he stabbed a man. Washingtons probation was summarily revoked on June 13, 2006, and a contested probation revocation hearing was held on August 4, 2006 and September 15, 2006. The trial judge at the revocation hearing, Hon. Philip S. Gutierrez, had not presided at Washingtons plea and sentencing hearings. According to the hearing evidence, after exchanging words with the intoxicated victim, Washington stabbed him in the stomach with a one-inch utility tool/knife. Washington testified and admitted stabbing the victim with a utility tool/knife he carried in his pocket.

At the conclusion of the hearing Judge Gutierrez found Washington had violated the conditions of his probation by committing assault with a deadly weapon and by possessing a knife or deadly weapon. After further argument by counsel, Judge Gutierrez stated his tentative decision was to impose an aggregate seven-year state prison sentence (the two-year lower term for aggravated assault, plus the mandatory five-year enhancement for Washingtons prior serious felony conviction) as urged by the People, rather than to reinstate probation. Judge Gutierrez expressed concern about public safety if probation were reinstated because of Washingtons mental instability and prior violent behavior. However, acknowledging the sole question was whether Washington was amenable to probation, Judge Gutierrez agreed to continue sentencing to enable defense counsel to investigate possible residential treatment options for Washington in lieu of a state prison commitment.

At the November 15, 2006 sentencing hearing Judge Gutierrez stated he had reviewed defense counsels statement in mitigation, which contained reports of two mental health specialists who had examined Washington and a partial set of Washingtons mental health records. Over the prosecutors objection Judge Gutierrez granted defense counsels request for a 90-day diagnostic study ( 1203.03) to assess Washingtons potential for functioning successfully on probation or under other supervision and the level of threat to the community if he should fail to live up to that potential.

At the renewed sentencing hearing on March 29, 2007, following the 90-day diagnostic study, yet another trial judge (Hon. Tia Fisher) presided. The court agreed with counsel the sole purpose of the hearing was to determine Washingtons suitability for probation in view of the treatment options proposed by defense counsel. Prior to hearing testimony the court stated it had reviewed the file, including the transcript of the plea hearing and the completed diagnostic study, which concluded Washington was unsuitable for probation and should be committed to state prison. The court further commented it had read defense counsels papers describing Millennium House, a residential treatment program for drug and alcohol addiction, which had agreed to accept Washington. The court then heard testimony of defense witnesses Robert Riser of Millennium House and Washingtons brother and sister-in-law. Washington also made a statement to the court.

After lengthy argument by counsel, the court declined to reinstate probation and sentenced Washington to seven years in state prison. The court also ordered Washington to pay a $20 court security fee ( 1465.8, subd. (a)(1)) and a $200 restitution fine ( 1202.4, subd. (b)). A parole revocation fine was imposed and suspended pursuant to section 1202.45. Washington received presentence custody credit of 816 days (666 actual days and 150 days of conduct credit).

DISCUSSION

1. The Restitution Fine Was Not Doubly Imposed

When Washington was originally placed on probation in September 2002, the court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b).^[3] The reporters transcript and minute order of the March 29, 2007 sentencing hearing following revocation of probation also reflect imposition of a $200 restitution fine; the $200 restitution fine is included in the abstract of judgment. Washington contends Judge Fisher erred by imposing a second $200 restitution fine after an initial restitution fine had been imposed at the time Washington was originally placed on probation.

Washington is correct a court may not impose separate restitution fines when it grants probation following a conviction and when probation is subsequently revoked:^[4] [A] trial court has no statutory authority to order a second restitution fine upon revocation of probation. (People v. Arata (2004) 118 Cal.App.4th 195, 201-202; see People v. Chambers (1998) 65 Cal.App.4th 819, 821-823 [since the trial court was without statutory authority to impose the second restitution fine, it must be stricken].) A restitution fine, imposed as a condition of probation, survives the probationary term. (Arata, at p. 201.)

Although Washingtons premise is true, nothing in the record suggests Judge Fisher intended to impose a second $200 restitution fine rather than simply to confirm the imposition of the previously ordered $200 fine. We presume the trial court applied the correct statutory and case law unless the record affirmatively demonstrates otherwise. (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430 [[i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties].) Accordingly, we decline to strike the $200 restitution fine in the abstract of judgment. To the extent Washington has made payments toward satisfaction of a second restitution fine, he may claim credit on his other financial obligations for such payments.

2. TheFailure To Order a Supplemental Probation Report Was Not Prejudicial

Rule 4.411(c) of the California Rules of Court requires the court to order a supplemental probation report whenever sentencing takes place a significant period of time after the original report was prepared. As explained in the Advisory Committee Comment to the rule, Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing. The Advisory Committee suggests a period in excess of six months following the original report triggers the requirement for a new report. (See People v.Dobbins (2005) 127 Cal.App.4th 176, 180-181 [elapse of eight months is too long to rely on original probation report].)

Although approximately five years had elapsed between the preparation of Washingtons original Early Disposition Probation Officers Report in June 2002 and his ultimate sentencing upon revocation of probation in March 2007, any error in failing to order a new probation report in this case was plainly harmless. (See People v.Dobbins, supra, 127 Cal.App.4th at p. 182 [harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 834-836 applies to failure to order supplemental probation report].) The purpose of a supplemental report is to provide the trial court information necessary to its exercise of discretion at sentencing. (People v. Rojas (1962) 57 Cal.2d 676, 682.) The report provides information relevant not only to the grant or denial of probation, but also to the length of the defendants sentence, specifically whether the lower, middle or upper term should be imposed and, in cases involving multiple counts, whether sentences should be served concurrently or consecutively. The report presents information in a cohesive fashion, facilitating the task of weighing newly revealed mitigating factors in the balance. (People v.Tatlis (1991) 230 Cal.App.3d 1266, 1273.)

All parties had agreed the sole issue at sentencing was Washingtons current amenability to mental health treatment on probation in light of his history of mental illness and violent tendencies. The documents and testimony introduced at the sentencing hearing fully addressed this issue. Significantly, the original June 24, 2002 probation report set forth Washingtons history of mental illness, treatment efforts and propensity for violence in concluding he was not a suitable candidate for probation. The diagnostic study, conducted immediately before Washington was sentenced to state prison in March 2007, came to the same conclusion based on more recent and detailed information about Washington. It is highly unlikely in these circumstances a supplemental probation report would have reached a contrary conclusion or would have added any new or significant information to assist the court in exercising its sentencing discretion.^[5]

DISPOSITION

The judgment and order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] Statutory references are to the Penal Code.

^[2] Section 1203, subdivision (e), provides: Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [] . . . [] (2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted.

^[3] 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. [] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. [] (2)  In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.

^[4] The failure to object to the imposition of a second restitution fine does not forfeit appellate review. (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)

^[5]Washington correctly notes nothing in the record indicates how much (if any) of the $200 restitution fine originally imposed in 2002 has been paid, including whether it has been paid in full. The absence of this information, however, does not make the lack of a supplemental probation report prejudicial or in any way invalidate the trial courts decision to sentence Washington to state prison following the revocation of probation. Nonetheless, we emphasize yet again the total due from Washington under section 1202.4, subdivision (b), is $200.