Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR914726
Banke, J.
Defendant Daniel L. Woods appeals from a judgment revoking his “Proposition 36” probation and sentencing him to an upper term sentence of four years on one felony count of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)) to which he had pled no contest pursuant to a negotiated disposition. Woods contends the trial court improperly revoked his probation and erroneously re-imposed several fees and fines. We affirm.
Background
This case arose from Woods’s arrest on September 28, 2007, on a warrant for his arrest in connection with a parole violation in another case. About a pound of dried, packaged marijuana was seized from the vehicle in which he was riding.
Defendant served time on the parole violation and was then released on bail in this case in May 2008.
While on bail, Woods was arrested in November 2008 in Del Norte County. He was released on probation in that case, but violated his probation and was given a chance to apply to the Delancey Street program on condition he return to court if he was rejected by the program. Woods did not get into the program and also failed to return to Del Norte County.
On June 15, 2009, pursuant to a negotiated disposition in the instant case, Woods pled no contest to one felony count of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)). Charges of possession for sale (Health & Saf. Code, § 11359) and cultivation (one felony count of cultivating marijuana (Health & Saf. Code, § 11358)), and allegations of two prison term priors and three prior felony convictions (Pen. Code, §§ 667.7, subd. (b), 1203, subd. (e)(4)) were dismissed. Defendant was placed on three years of “Proposition 36” probation (Pen. Code, § 1210.1), and various fees, assessments and fines were imposed as terms and conditions of probation. The terms of his probation also included complying with a drug treatment plan and performing 80 hours of community service.
On November 13, 2009, Woods’s probation was summarily revoked after he tested positive for drugs and failed to complete the community service condition of his probation. On December 7, 2009, Woods admitted violating probation by failing to complete community service.
At a sentencing hearing on January 19, 2010, the trial court exercised its discretion and terminated Woods’s “Proposition 36” probation and imposed an upper term sentence of four years. The abstract of judgment identified Woods’s financial obligations as follows: $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) “forthwith”; $200 restitution fine pursuant to Penal Code section 1202.45 “suspended”; $200 restitution fine pursuant to Penal Code section 1202.44, “now due, probation having been revoked”; $190 lab fee pursuant to Health and Safety Code section 11372.5, subdivision (a); $570 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a); $30 court security fee pursuant to Penal Code section 1465.8; and $30 criminal conviction assessment pursuant to Government Code section 70373.
Woods filed a timely notice of appeal on February 3, 2010.
Discussion
Probation Revocation
Woods contends the trial court misunderstood the scope of its discretion in terminating his “Proposition 36” probation and sentencing him to prison on the Health and Safety Code section 11360 transportation charge. Principally, Woods takes issue with the trial court’s observation that, in light of his multiple prior felony convictions, there was a statutory presumption against probation absent unusual circumstances under Penal Code section 1203, subdivision (e)(4). The trial court further stated that even if there was no presumption against probation, the court would not be inclined under the criteria in California Rules of Court, rule 4.414, to put Woods back on probation. Woods asserts that once “Proposition 36” comes into play, it supercedes rules 4.413 (referencing statutory presumptions against probation) and 4.414 (stating criteria affecting the decision to grant or deny probation).
Woods acknowledges the trial court’s reasoning was consistent with the Third District Court of Appeal’s decision in People v. Dixon (2003) 113 Cal.App.4th 146 (Dixon). In Dixon, the court held that, in sentencing a defendant who violated a non-drug related condition of a “Proposition 36” probation, the trial court properly applied the presumption against probation in Penal Code section 1203, subdivision (e)(4). (Dixon, at pp. 152-153.) Woods asserts the Third District’s reasoning was “faulty” and that Penal Code section 1203 applies only to an initial “grant” of probation and no longer applies once probation is granted under “Proposition 36.”
We see no reason to disagree with Dixon, whichhas never been questioned and sets forth a reasonable approach to sentencing following revocation of a “Proposition 36” probation for violation of a non-drug related condition. The approach approved in Dixon is fully consistent with the purpose of “Proposition 36” probation, to provide individuals a reasonable opportunity to complete rehabilitation and overcome a drug problem. This purpose is not at issue where, as here, the defendant violates non-drug related conditions of his or her probation. (See Dixon, supra, 113 Cal.App.4th at pp. 152-153.)
The trial court therefore did not abuse its discretion in noting that the multiple-felony presumption against probation set forth in Penal Code section 1203, subdivision (e)(4), applied. Nor did it abuse its discretion in stating that, even if the presumption did not apply, the criteria that otherwise are relevant to deciding whether or not to grant probation also weighed against placing Woods on probation, given the seriousness of the crime, Woods’s criminal history (including failed probations) and the fact he was on parole when he committed the instant offense.
Fines and Fees
Woods contends the trial court erroneously twice imposed some fines and fees. On June 15, 2009, when the court accepted his no contest plea and placed him on “Proposition 36” probation, the court ordered the following as terms and conditions of probation: a drug program fine of $570; a laboratory fee of $190; a $20 court security fee; a $30 criminal conviction assessment; a restitution fine of $200; and a stayed probation violation fine of $200. On January 19, 2010, when the court permanently revoked probation and sentenced Woods to the upper term four-year prison sentence, the court imposed: a drug program fine of $570; a laboratory fee of $190; a $30 court security fee; a $30 criminal conviction assessment; a $90 criminal justice administrative fee; a restitution fine of $200; a probation violation fine of $200; and a stayed $200 parole revocation fine. Woods asserts that having “pronounced” sentence on June 15, 2009, the court “in essence” imposed the fees and fines a second time on January 19, 2010.
Woods cites to People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). In Chambers, the trial court imposed a $200 restitution fine when the defendant pled no contest and was placed on probation, but imposed a $500 restitution fine when his probation was revoked and he was sentenced to state prison. (Id. at p. 821.) The Third District Court of Appeal modified the judgment by striking the $500 fine. The court explained that while a restitution fine under Penal Code section 1202.4 was mandatory, the trial court at the time had discretion whether to make it a condition of probation. (Chambers, at pp. 821-822.) The trial court could not, however, impose the fine as a condition of probation and then impose another restitution fine at the time of sentencing. (Ibid.) Subsequent amendments to Penal Code section 1202.4 removed the discretion as to probation, and imposition of the fine as a condition of probation is now mandatory. (Chambers, at p. 822.) The restitution fine, however, “survive[s]” a revocation of probation, and as such, should appear in the abstract of judgment. (Id. at pp. 822-823.)
In People v. Cropsey (2010) 184 Cal.App.4th 961 (Cropsey), the Third District considered and rejected a Chambers argument similar to that made here by Woods. In Cropsey, the trial court placed the defendant on probation following a no contest plea, the conditions of which included a $200 restitution fine under Penal Code section 1204.4, subdivision (b), and a $200 restitution fine under section 1202.44, which was suspended pending successful completion of probation. (Cropsey, at pp. 962-963.) Following a first probation violation, the $200 probation violation fine (Pen. Code, § 1202.44) was imposed. (Cropsey, at p. 963.) Following a third probation violation, the court sentenced the defendant to state prison, but suspended execution of sentence, and reinstated probation. (Ibid.) At that time, the court “reimpose[d]” the $200 restitution fine, “reimpose[d]” the $200 probation violation fine and added a $200 restitution fine suspended unless parole was revoked. (Id. at p. 964.)
The defendant contended the trial court had erred in imposing two restitution fines under Penal Code sections 1202.4, subdivision (b), and 1202.44. This case was different from Chambers, said the Third District. Here, it was apparent the trial court was attempting to comply with Chambers by stating the fines were “reimposed.” (Cropsey, supra, 184 Cal.App.4that p. 965.) The court was not imposing a “new, prohibited second fine.” (Ibid.) This was confirmed by the fact the clerk wrote “previously imposed” in the minutes adjacent to the restitution fines. The appellate court therefore rejected the defendant’s suggestion that all references to the restitution fines should be deleted from the minutes as “infeasible because it sets the stage for an extant but unpaid fine to be overlooked.” (Ibid.)
The appellate court noted, however, the trial court’s words “ ‘reimpose the restitution amounts’ ” was “inconsistent with the principle upon which Chambers was decided.” (Cropsey, supra, 184 Cal.App.4th at p. 965 .) The “survival” of the restitution “made it unnecessary to ‘reimpose’ those still extant ‘restitution amounts.’ ” (Id. at p. 966.) “Where a restitution fine(s) has been previously imposed, the trial court should simply say, ‘The abstract of judgment should reflect the restitution fine(s) previously imposed.’ ” (Ibid.)
Here, the trial court did not use even the terminology “reimpose” in listing Woods’s financial obligations. Nor did the sentencing minutes include any notation the fines had been “previously” imposed. However, comparing the minutes from Woods’s no contest plea, which lists the fines and fees as terms and conditions of probation, and the minutes from the sentencing hearing, it appears the latter were meant to set forth Woods’s final “financial obligations” and did not list a second set of fines. This is confirmed by the abstract of judgment, which confirms Woods was not “twice fined” with respect to any fine, assessment or fee. (See Cropsey, supra, 184 Cal.App.4th at pp. 965-966 [recommending trial court state “ ‘abstract of judgment should reflect the restitution fine(s) previously imposed’ ”].) Accordingly, we see no need to “strike” any part of the minutes from the sentencing hearing, although as Cropsey points out, it is preferable practice to specify that “ ‘The abstract of judgment should reflect the restitution fine(s) previously imposed.’ ” (Ibid.)
Woods also contends the trial court erred at sentencing in imposing a $30 court security fee pursuant to Penal Code section 1465.8 and the $90 criminal justice administrative fee pursuant to Government Code section 29550, subdivision (c). He asserts the court first “pronounced” sentence when it accepted his no contest plea and placed him on “Proposition 36” probation and, at that time, imposed a $20 court security fee and no administrative fee. He claims the court could not “change” his sentence upon revocation of probation. However, rather than ordering that “execution of sentence” be suspended at the time the trial court placed Woods on probation, the court ordered that “imposition of sentence” be suspended, thus deferring formal pronouncement of sentence to a later date. (Pen. Code, § 1203.2, subd. (c); cf. People v. Sizemore (2009) 175 Cal.App.4th 864, 868, 872-873 [imposition of sentence suspended when defendant placed on “Proposition 36” probation; sentence imposed after probation revoked].) The abstract of judgment, in turn, does not list both a $20 and a $30 court security fee, but only the $30 fee imposed at sentencing.
Woods further contends that because his conviction offense occurred on September 28, 2007, the trial court erred at sentencing in imposing the $30 court security fee pursuant to Penal Code section 1465.8, as amended effective July 28, 2009, and the $30 criminal conviction assessment pursuant to Government Code section 70373, effective January 1, 2009. He asserts imposition of these amounts violated proscriptions against ex post facto laws. Woods acknowledges, however, that the California Supreme Court has rejected such an ex post facto argument and held in People v. Alford (2007) 42 Cal.4th 749, that retroactive application of a court “security fee” does not give rise to an ex post facto violation. While Woods takes issue with the Supreme Court’s analysis, he also acknowledges this court is bound to follow Alford. (See also People v. Castillo (2010) 182 Cal.App.4th 1410, 1414-1415 [citing Alford and holding imposition of similarly worded criminal conviction assessment did not violate ex post facto principles].)
Disposition
The judgment is affirmed.
We concur: Margulies, Acting P. J., Dondero, J.