Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03CR3215, 04CR5052
HULL, J.
Defendant John Joe Borba appeals from the sentence executed after a finding he violated probation. He contends the trial court increased his sentence upon recall, imposed duplicate restitution fines, and imposed a drug program fee which had not been imposed at the time his probation was revoked. We disagree and affirm the judgment. Defendant also argues the abstract of judgment is erroneous. On this last point, we agree and will direct that the abstract of judgment be corrected.
Facts and Proceedings
On November 18, 2003, in case No. 03CR3215, defendant pleaded guilty to unlawfully manufacturing a short-barreled shotgun (Pen. Code, § 12020) and possessing a silencer. (Pen. Code, § 12520).
By the time case No. 03CR3215 came on for sentencing, defendant had also been charged with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), possession of a smoking device (Health & Saf. Code, § 11364), giving false information to a police officer (Pen. Code, § 148.9, subd. (a)), and driving without a license (Veh. Code, § 12500, subd. (a)) in case No. 04CR5052. The complaint also alleged defendant had been released from custody on bail at the time he committed these offenses. (Pen. Code, § 12022.1)
On May 5, 2004, defendant pleaded guilty to all of the counts in case No. 04CR5052 and admitted the on-bail allegation. In entering the plea, the parties agreed defendant would admit the charges and be sentenced to six years in state prison, execution of sentence suspended. Defendant would also be sentenced to a consecutive 16-month term, execution suspended, in case No. 03CR3215, for a total sentence of seven years four months.
On July 14, 2004, defendant was sentenced in accordance with the plea to an aggregate term of six years in case No. 04CR5052, execution suspended. This six years was the aggravated term of four years on the transportation charge and the mandatory two consecutive years on the on-bail enhancement. He was placed on probation for five years, and ordered to pay various fines and fees, including a $200 restitution fine, a $63.50 criminal justice administration fee, a court security fee of $20, a criminalist lab fee of $50, and a drug program fee of $450. Because of some questions about sentencing credits and the terms and conditions of probation on case No. 03CR3215, sentencing on that case was continued.
On August 11, 2004, defendant was sentenced in accordance with the remainder of the plea on case No. 03CR3215 to a consecutive term of 16 months, execution suspended. He was also ordered to pay a $200 restitution fund fine, a $63.50 criminal justice administration fee, and a $20 court security fee.
A petition for violation of probation was filed on October 16, 2006. The petition alleged defendant had committed grand theft, possession of controlled substances, and transportation of controlled substances. Following a contested hearing, defendant was found in violation of probation on February 7, 2007.
A supplemental probation report was filed on March 12, 2007. In case No. 04CR5052, the report recommended defendant’s probation be revoked and he be sentenced to state prison for a term of six years. In a separate report on case No. 03CR3215, the report recommended defendant’s probation be revoked and he be sentenced to a 16-month term, to run concurrently with the sentence in case No. 04CR5052. The district attorney, relying on the probation reports, argued defendant should be sentenced to a six-year term.
In imposing sentence, the court stated defendant had “entered a plea in which he agreed that he would receive the aggravated term, as well as, the two-year--additional two years added pursuant to [Penal Code section] 12022.1. Then . . . the execution of sentence was suspended, he was placed on Probation. . . . He has continued to violate and I cannot in all good conscious [sic] find any good reason to place him back on Probation based on the numerous violations that have occurred since he’s been on Probation. . . . [¶] That being said, as to Count I [in case No. 04CR5052], that he will be sentenced to the aggravated term. I’m reimposing the original sentence that he agreed to the aggravated term of four years. Also, pursuant to [Penal Code section] 12022.1 an additional two years will be added. So he has a total aggregate term of six years. [¶] Further, that he shall submit to a DNA sample pursuant to [Penal Code section] 296. [¶] Pay $63.50 Criminal Justice Administration Fee. [¶] Pay $200.00 Restitution Fine. [¶] Additional $200.00 Restitution Fine will be imposed, but stayed pending successful completion of parole.”
In case No. 03CR3125, the court stated defendant “will be sentenced to the Department of Corrections for the mitigated term of sixteen months with six days credit for time served. That will be served concurrent to the sentence imposed in Case No. 04CR45052. [¶] Again, he needs to submit DNA samples pursuant to Penal Code 296. Pay $63.50 Criminal Justice Administration Fee. [¶] Pay a $200.00 Restitution Fine. [¶] An additional $200.00 Restitution Fine will be imposed, but that’s stayed pending successful completion of parole. He is required to pay the Court Security Fee, that was part of the plea agreement, $20.00 Court Security Fee.”
On March 22, 2007, the sentence was recalled to clarify the fines imposed. The court also noted the sentence imposed on March 14, 2007, was not in accordance with the plea agreement in that it was clear defendant was to be “sentenced to a total term of seven years, four months, in the two cases, one to one consecutively to the other.” The court also noted sentence had been previously imposed with execution suspended; accordingly, the court had to order that previous judgment into effect. Defense counsel argued defendant might have a right to claim that jeopardy had attached on March 14, 2007, and the court could not resentence him. The court responded it could recall a sentence within 120 days under Penal Code section 1170, subdivision (d). In an effort to fully understand what had happened at the previous sentencing, transcripts were ordered and the matter was continued.
On March 28, 2007, the court acknowledged it had erred in sentencing defendant on March 14, 2007. The court stated it had reviewed the transcripts of the original hearing and it was clear that the only sentence which could be imposed was the six-year term in case No. 04CR5052 to run consecutively with the 16-month term in case No. 03CR3215. The court also noted it was obliged to reimpose the fines which were part of the probationary grant. The court continued to deny defendant a grant of probation. The court then executed the sentence previously imposed of six years, and reimposed the various fines and fees, including the $200 restitution fine and the $450 drug program fee. The 16-month term in case No. 03CR3215 was ordered to be served consecutively to the sentence in case No. 04CR5052. Again, various fines and fees were reimposed, including the $200 restitution fine.
Discussion
I
The Sentence to State Prison
Defendant contends the trial court erred in increasing his sentence upon the recall in violation of double jeopardy. There was no error.
When a prison sentence is imposed but execution of the sentence is suspended and a defendant is placed on probation, the trial judge must order the original sentence into full force and effect if probation is revoked. (Pen. Code, § 1203.2; Cal. Rules of Court, rule 4.435(b)(2).) A trial court may not increase or decrease the prison term of a sentence that is simply unexecuted. (People v. Howard (1997) 16 Cal.4th 1081, 1089 (Howard).)
In Howard, our Supreme Court explained, “On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect.” (Howard, supra, 16 Cal.4th at p. 1088.) “[I]f the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage.” (Id. at p. 1095.)
Defendant acknowledges Howard; however, he claims that in arguing for the six-year term and not objecting to the sentences in case Nos. 03CR3215 and 04CR5052 being imposed concurrently, the prosecution acquiesced to a modified sentence. Defendant continues that in having so acquiesced, the prosecution “forfeited the right to . . . retract its acquiescence in the modified sentence.”
In making this claim, defendant relies on People v. Ramirez (2008) 159 Cal.App.4th 1412 (Ramirez). Defendant contends that Ramirez stands for the proposition that the defendant forfeited his right to challenge an increased sentence following a revocation of probation, because he had consented to the sentence and failed to appeal it when it was first imposed. This misreads the thrust of the court’s analysis and holding in Ramirez.
In Ramirez, the defendant attempted to challenge an increased sentence that was imposed in 2004 as part of a plea agreement that allowed him to remain on probation. However, he waited to make that challenge until 2006, when the court terminated his probation based on a new violation, and ordered him to serve the prison term that had been imposed but suspended in 2004. The Ramirez court found that the defendant was precluded from seeking relief because he had failed to raise this sentencing error in a timely appeal from the original imposition of sentence in 2004. The Ramirez court also found that defendant had agreed “to increase his suspended sentence by one year, [in exchange for which he ] . . . received the benefit of being reinstated on probation and released from custody. Having accepted the benefits of his plea, he should not now be able to better the bargain by scaling back the increased sentence that was a fundamental component of the plea deal.” (Ramirez, supra, 159 Cal.App.4th at p. 1428.)
Defendant attempts to bring this case within the Ramirez reasoning, claiming in “requesting and acquiescing in the reduced prison term, the prosecution received the benefit of obtaining a six-year prison sentence against [defendant], rather than reinstatement of probation.” The record belies this claim.
Nothing in the People’s argument indicates that they were attempting to bargain with a modified sentence so defendant would be imprisoned rather than continued on probation. Rather, the People’s argument was that the previously imposed sentence should be executed. In making this argument, the People relied upon the probation officer’s reports as to what that previously imposed sentence was. Both reports detail the previously imposed sentences and err in that recitation only in recommending that the sentence in case No. 03CR3215 be imposed concurrent to the sentence in case No. 04CR5052, rather than consecutively.
It is apparent from the record the error of the district attorney’s office did not arise from a desire to negotiate for a different prison term in exchange for defendant being sent to prison rather than continued on probation. Rather, the error came from relying upon an erroneous probation report.
Furthermore, the court’s comments upon sentencing amply demonstrate the court was not inclined to grant further probation to defendant, irrespective of the term to be served. The court stated, “[Defendant] has not complied with the terms and conditions of his Probation. . . . He has continued to violate and I cannot in all good conscious [sic] find any good reason to place him back on Probation based on the numerous violations that have occurred since he’s been on Probation. It should also be noted that he got these violations within [a] year as to when he entered this plea.” (Italics added.)
There is absolutely no indication in the record that the six-year sentence was imposed as some sort of compromise so defendant would be remanded to custody rather than continued on probation, nor is there any indication the court would have consented to any such compromise given defendant’s record of performance on probation. The People neither accepted nor received any benefit in exchange for defendant receiving a lesser term than that which had already been imposed. Since the People made no effort to “better their bargain” and received no such benefit, there is nothing in the record which would bring this case within Ramirez.
Having disposed of defendant’s claims under Ramirez, this case then falls squarely within the holding of Howard and becomes a fairly simple case in which the court acted to correct an unauthorized sentence. A court may correct an unauthorized sentence at any time. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) The failure to object to an unauthorized sentence does not forfeit the matter or foreclose review. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Here, sentence was imposed and execution suspended, defendant did not challenge that sentence on appeal, but instead “commence[d] a probation period reflecting acceptance of that sentence.” (Howard, supra, 16 Cal.4th at p. 1084.) Accordingly, “then the court lack[ed] the power, at the precommitment stage [citation], to reduce the imposed sentence once it revoke[d] probation.” (Ibid.) That is, the six-year sentence in case No. 04CR5052 with a concurrent 16-month term in case No. 03CR3215 was an unauthorized sentence. Upon deciding to revoke probation, there was only one choice for the court and that was to order the previously imposed sentence into effect. Each of the recalls of the sentence was designed specifically and solely to properly put that sentence into effect. The court did not err in correcting the unauthorized sentence.
II
Duplicate Restitution Fines
Relying on People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers), defendant argues the court erred in imposing duplicate restitution fines when probation was revoked, as those fines had been previously imposed at the time of the original sentencing. The record does not support defendant’s claim.
Penal Code section 1202.4, subdivision (b), requires imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (Chambers, supra, 65 Cal.App.4th at pp. 821-823.) Consequently, the imposition of a second, or duplicate, restitution fine upon revocation of a defendant’s probation is unauthorized. (Id. at p. 823.)
Here, when defendant was granted probation in case No. 04CR5052, the court imposed a $200 restitution fine pursuant to Penal Code section 1202.4. In case No. 03CR3215, the court imposed a separate $200 restitution fine under Penal Code section 1202.4.
In pronouncing sentence following revocation of probation in case 04CR5052, the court stated, “I’m reimposing the original sentence that he agreed to” which included ordering defendant to pay a $200 restitution fine. As to case No. 03CR3215, the court stated it would sentence defendant to the concurrent 16-month term and defendant needed to “[p]ay a $200.00 Restitution Fine.”
When the matter came on for correction of the sentence in accord with the plea agreement, the court stated “[t]he other thing that the Court has an obligation to do is to reimpose some fines that were part of your term and conditions of Probation.” The court made clear at the hearing to correct the sentence, it was reimposing the previously imposed fines, not adding any new fines or altering the sentence in anyway. Thus, on this record it appears the court intended simply to reiterate, rather than duplicate or add to, the Penal Code section 1202.4 restitution fines previously imposed in both cases.
In any event, we need not take any action to correct or clarify the record given that the abstract of judgment correctly reflects the imposition of a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) in each case. It is those documents upon which the parties responsible for executing the sentence and collecting the fees and fines will rely. Since the record indicates defendant has not made any payments on any of the fines and fees originally imposed, the abstract of judgment correctly reflects two $200 restitution fund fines.
III
Drug Program Fee
When defendant was sentenced in case No. 04CR5052, he was ordered to pay a $450 drug program fee pursuant to Health and Safety Code section 11372.7. When probation was revoked on March 14, 2007, the court did not reimpose that fee. As noted above, however, at the hearing to correct the sentence, the court noted its obligation to reimpose the previously imposed fines, including the $450 drug program fee.
Defendant now argues that the failure of the court to reimpose the drug program fee at the March 14, 2007, sentencing hearing was an implicit finding that the defendant was unable to pay the fee. Defendant further contends the failure to reimpose the drug program fee at the March 14, 2007, hearing was not an unauthorized sentence because the fee is discretionary and dependent upon a finding that the defendant has an ability to pay. We are not persuaded.
Given the errors which were made at the March 14, 2007, hearing, we are unwilling to presume that the court’s failure to reimpose the $450 drug program fee represented a finding that defendant was unable to pay the fee. This unwillingness is furthered by the fact that there is nothing in the record which suggests the court reconsidered the initial determination of defendant’s ability to pay nor is there any evidence that the factors leading up to that initial determination had changed.
In determining ability to pay under Health and Safety Code section 11372.7, the court is expressly required to take “into account the amount of any fine imposed upon that person and any amount that person has been ordered to pay in restitution.” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1516.) In accord with the dictates of Howard and Chambers, the amounts defendant was ordered to pay in restitution remained the same on the date when sentence was originally imposed, when probation was revoked, and when the sentence was corrected. Further, contrary to defendant’s suggestion, “[a]bility to pay does not necessarily require existing employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) There is nothing in the record that suggests defendant will be unable to find and maintain productive employment once his sentence is completed. (Id. at p. 786.) Defendant was 44 years old when sentence was imposed. He had completed high school and was self-employed as a welder. It appears from the record defendant has been gainfully employed for the majority of his life. “If there were any . . . latent impediments, defendant would be in the best position to know of and develop that information. Since he failed to object to imposition of the drug program fee or to request a hearing on his ability to pay, we assume there are no such impediments.” (Ibid.)
To the extent there are discretionary components of Health and Safety Code section 11372.7, we are not convinced that those discretionary aspects remove section 11372.7 fees from the ruling of Howard. The language in Howard is abundantly clear. “On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations] . . . .” (Howard, supra, 16 Cal.4th at p. 1088, italics added.) Nothing in that language suggests that the mandatory or discretionary nature of a particular component of the sentence effects whether that component of the sentence must be reimposed. Rather, the language, without exception, states the “exact sentence” must be ordered into effect. Accordingly, there was no error in reimposing the drug program fee.
IV
The Abstract of Judgment
Defendant’s final contention is that the abstract of judgment is inconsistent with the oral pronouncement of judgment, in that it reverses the fines and fees imposed in each case. The People concede the error. Our review of the record confirms the error.
In case No. 04CR5052, the court imposed the following fines and fees, a $63.50 criminal justice administration fee, a $200 restitution fund fine, a $20 court security fee, a $450 drug program fee, and a $200 parole revocation fine. In case No. 03CR3215, the court imposed the following fines and fees, a $63.50 criminal justice administration fee, a $200 restitution fine, a $20 court security fee, and a $200 parole revocation fine. The abstract of judgment has the correct fines imposed but applies them to the wrong cases. Accordingly, we shall direct the trial court to correct the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Disposition
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect the correct imposition of fees and fines to the correct cases and forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS , Acting P.J., DAVIS , J.