Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE275702, Peter C. Deddeh, Judge.
HALLER, J.
Steven Trent Voiles entered a negotiated guilty plea to one count of committing lewd acts upon a minor under the age of 14 (Pen. Code, § 288, subd. (a)). Under the plea bargain, the prosecution agreed to dismiss 50 other counts of sex offenses against a minor. The parties stipulated to a sentence of 365 days in custody. The trial court suspended imposition of sentence and placed Voiles on formal probation for three years, conditioned on, among other things, he serve 357 days (time served) in jail and complete a sex offender treatment program.
Statutory references are to the Penal Code.
Subsequently, Violes's probation officer petitioned to have his probation revoked. After an evidentiary hearing, the trial court revoked probation and sentenced Voiles to six years in prison-the middle term for committing lewd acts on a minor under the age of 14. The trial court also imposed a $1,200 restitution fine under section 1202.4, subdivision (b).
Originally, the trial court imposed a $200 restitution fine under section 1202.4, subdivision (b), when it placed Voiles on probation.
Violes appeals, contending the trial court (1) abused its discretion by revoking probation, and (2) erred by increasing the restitution fine after revoking probation.
FACTS
In entering his plea, Voiles admitted that between September 2000 and June 2001, he had his biological daughter, who was between 6 years and 8 years old, rub his penis, and he, in turn, rubbed the victim's breasts and genital area. He then performed oral sex on her.
In addition to requiring Voiles to attend and successfully complete a sex offender treatment program, Voiles's probation conditions included: a prohibition against possession of a firearm, ammunition, or a deadly weapon; a prohibition against using computers; total abstention from alcohol consumption; a requirement that he report all law enforcement contacts in writing to the probation officer within seven days; and a mandate to "[f]ollow such course of conduct as the probation officer prescribes." Voiles's probation officer instructed him to immediately report by telephone if law enforcement contacted him.
On December 23, 2008, almost two months after he was placed on probation, Voiles's probation officer searched his house. Two armor-piercing rounds of ammunition were found in Voiles's bedroom, and a loaded magazine for a Walther P22 and a.45 caliber round were found inside a safe in the bedroom. Voiles testified that he was unaware of the ammunition in the safe.
Four months later, different law enforcement officers searched Voiles's residence. Voiles did not follow the probation officer's directive to immediately report this contact with law enforcement by telephone. Voiles telephoned the probation officer five days after this law enforcement contact.
On May 20, 2009, Voiles told his probation officer he had used his girlfriend's computer to pay his bills. On the same date, Voiles also admitted he had drunk a half glass of alcohol on Valentine's Day while with his girlfriend.
On June 24, 2009, the probation officer received an informal progress report from the psychologist who ran the sex offender treatment program in which Voiles was enrolled. According to the report, Voiles, "almost literally, has done nothing in treatment. [Voiles] sits absolutely silent during group sessions... and does not present assignments from the curriculum." The report also noted that when the program provider told Voiles that his poor performance would be reported to the probation officer, he responded by threatening to file a lawsuit against the program provider.
On July 2, 2009, the probation officer arrested Voiles for probation violations. The probation officer filed the petition to revoke probation on July 9, 2009.
Psychologist James Reavis, who ran the sex offender treatment program, testified that although Voiles's participation and performance were poor, he was not in immediate danger of being terminated from the program.
The trial court found Voiles violated his probation by possessing ammunition. After revoking Voiles's probation, the trial court then sentenced Voiles to six years in prison rather than reinstate probation. The trial court called the sentencing decision "a close call."
DISCUSSION
I
Voiles contends the trial court abused its discretion by revoking his probation and imposing a prison sentence. The contention is without merit.
Probation is not a right, but an act of clemency to allow rehabilitation. (People v. Johnson (1993) 20 Cal.App.4th 106, 109.) The granting and revocation of probation are entirely within the sound discretion of the trial court. (People v. Howard (1997) 16 Cal.4th 1081, 1091-1094.) "Absent abuse of that discretion, an appellate court will not disturb the trial court's findings." (People v. Self (1991) 233 Cal.App.3d 414, 417.) "[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." (People v. Lippner (1933) 219 Cal. 395, 400.)
Given Voiles's failure to comply with the terms of his probation, the court did not abuse its discretion in refusing to reinstate probation and sentencing him to prison.
Voiles claims that his probation violations were "de minimis" and not serious enough to support revocation and a prison term. He is mistaken.
Notwithstanding Voiles's attempts to minimize his probation violations, they were sufficient enough to warrant revocation and a prison sentence. Knowing possession of ammunition by a felon is a crime. (§ 12316, subd. (b)(1).) Although Voiles testified that he did not know the safe contained ammunition, there was no similar testimony about the two armor-piercing rounds of ammunition. We also reject Voiles's argument that the possession of ammunition was not significant because the probation officer did not timely issue a violation for it. As the trial court aptly told defense counsel, the probation officer "[b]asically... gave your guy a break, and your guy didn't use the break he was given, is the way I guess I'm looking at it. And when [the probation officer] got the bad reports from Dr. Reavis, then he decided that the cumulative effect of all his misbehavior equaled a probation violation, so he sent everything back to court...."
We realize the trial court found only one probation violation-namely, the ammunition possession. Nonetheless, there was evidence Voiles flouted other probation conditions and was doing poorly in his sex offender treatment program. Although the majority of these contraventions might not have been very significant, the fact remains they occurred in a matter of months, which further supported the court's conclusions that Voiles was not amenable to a grant of probation and that the prison sentence should be imposed. The decisions to revoke probation and to impose the middle term for the lewd acts on a minor count were supported by the evidence and were reasonable.
Relying on People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, Voiles also attacks the trial court's decision to not reinstate probation and to sentence him to prison because the court did not state reasons for choosing to impose the prison term. There, the appellate court concluded that if a trial court "chooses to impose a state prison sentence rather than [to reinstate] probation it must give a statement of reasons in support of that sentence choice." (Id. at p. 794.)
This case is factually distinguishable from People v. Hawthorne, supra, 226 Cal.App.3d 789. In People v. Hawthorne, the trial court immediately sentenced the defendant to prison after revoking probation with no discussion of the available options under the circumstances and without considering counsel's argument. (Id. at p. 791.) Where "the court's statement focuses directly and exclusively upon the decision to revoke, ... the court's obligation to give a statement of reasons for choosing state prison over probation" is not satisfied. (Id. at p. 795.)
Here, after deciding to revoke probation, the trial court invited counsel to discuss sentencing. Defense counsel argued, among other things, that an alternative to prison would be to place Voiles in custody for the rest of the year with a waiver of good time credits "as a punishment for the violation of probation." Defense counsel pointed out that such a disposition would allow Voiles to return to the sex offender program and "would be the best thing for him and for society." Calling it a "close call, " the trial court rejected defense counsel's suggestion and sentenced Voiles to prison.
Although there was no formal statement of reasons, the reporter's transcript of the hearing can satisfy the requirement of a statement of reasons. (People v. Moss (1989) 213 Cal.App.3d 532, 534-535.) It is clear from the discussion at pages 69 to 71 of the reporter's transcript that the trial court listened and considered counsel's argument before rejecting it. The trial court's reasons for its decision to sentence Voiles to prison can readily be inferred from this record, which was not the case in People v. Hawthorne, supra, 226 Cal.App.3d 789.
In any event, if the lack of a formal statement of reasons by the trial court for choosing state prison over probation was error under People v. Hawthorne, supra, 226 Cal.App.3d 789, such error was harmless. When the law requires a statement of reasons for a sentencing decision, the purpose is to ensure that the appellate court can meaningfully review the exercise of discretion. (See e.g., People v. Granado (1994) 22 Cal.App.4th 194, 202-203 [denial of commitment to CRC].) Here, the record clearly implies the trial court exercised its discretion to send Voiles to prison after listening to and considering options advanced by counsel, and concluding that the interests of justice were best served by this sentencing decision. The record, therefore, provides an adequate basis for appellate review.
II
Voiles contends the trial court erred by increasing the restitution fine from $200 to $1,200 when it imposed the prison term. The Attorney General acknowledges that Voiles is correct. The trial court has no statutory authority to order a second restitution fine upon revocation. (People v. Arata (2004) 118 Cal.App.4th 195, 202; People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) Accordingly, we order the trial court to strike the $1,200 restitution fine and amend the abstract of judgment in this regard.
DISPOSITION
The trial court is directed to (1) strike the restitution fine of $1,200, (2) amend the abstract of judgment accordingly, and (3) forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J.NARES, J.