THE PEOPLE v. JASON EDWARD HAUPTMAN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JASON EDWARD HAUPTMAN, Defendant and Appellant.

2d Crim. No. B220693

Decided: November 22, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Procedural History

In 2008 and 2009, appellant entered a change of plea in two domestic violence cases.   In case number F417738, appellant pled no contest to corporal injury on a spouse (Pen.Code, § 273.5, subd. (a)).  In case number F427236, appellant pled no contest to dissuading a witness (§ 136.1, subd. (b)(2)) and admitted two prior prison term enhancements (§ 667.5, subd. (b)).

At a July 23, 2009 consolidated sentencing hearing, the trial court suspended imposition of sentence and granted three years probation.   Appellant was ordered to contact probation on or before August 28, 2009, not use drugs, attend a batterer's intervention program, pay a $200 restitution fine in case number F427236, and have no contact with the victim (appellant's ex-wife), Allyson S.

On October 27, 2009, Probation Officer Julie Elisalda reported that appellant had violated probation At a contested hearing, evidence was received that appellant failed to report to probation as directed, failed to attend domestic violence treatment program, and tested positive for methamphetamine on two occasions following his August 16, 2009 release from prison.   The evidence further showed that appellant's girlfriend, Sarah Keane, approached the victim at a Dollar Tree store on September 14, 2009, and photographed the victim's baby daughter.   Appellant was outside the store.   The trial court found that it was no coincidence that Keane

was in the store and spoke to the victim “making a big-to-do about this darling little child․”

The trial court terminated probation and sentenced appellant to five years state prison in case number F272236 and a concurrent four-year term in case number F4177338.2

Termination of Probation

Appellant argues that the trial court erred in not reinstating probation.   “Once a probation violation occurs, the trial court has broad discretion in deciding whether to continue or revoke probation.  [Citation.]”  (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.)   A trial court may refuse to reinstate probation where the defendant demonstrates a lack of commitment to carrying out the terms and conditions of his probationary grant.  (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

Appellant violated probation multiple ways.   It was uncontroverted that appellant failed two drug tests within 30 days of his release from prison and failed to contact probation by August 28, 2009.   Appellant admitted using methamphamine in prison even though he was ordered, as a term of probation, not to use or possess illegal drugs.

Appellant was also ordered not to have contact with the victim and served with a Criminal Protective Order-Domestic Violence order prohibiting direct or indirect contact with the victim.   Appellant violated the order by having Keane contact the victim at the Dollar Tree store.

Appellant argues that the probation violations were minor transgressions and that his behavior improved as time went by.   Appellant, however, violated three central terms of probation within a month of his release from prison.   The trial court declined to reinstate probation because appellant does “whatever comes to mind without regard for directions from the court or anyone else․”

Appellant's failure to comply with probation was a concern because the underlying crimes involved violence and threats of great bodily harm, and were committed while appellant was on probation or parole.   Appellant had an extensive criminal record with failed attempts at parole and probation.   The probation officer reported that appellant's “failure to contact Probation, and continued harassment of the victim are indicative of his noncompliance and his felony cases surely qualify him for prison recommendations.   Ongoing field supervision is not recommended as it should be reserved for those who exhibit the self-motivation, desire and control to maintain compliance with their terms and conditions of Probation.  [Appellant] is no longer viewed as a suitable candidate for Probation Supervision, [and] should be sentenced to the California Department of Corrections and remain on parole on parole when released.”

Probation is an act of clemency and may be withdrawn if the privilege is abused.  (In re Bine (1957) 47 Cal.2d 814, 817.)   Appellant makes no showing that the order revoking probation and imposing a state prison sentence was whimsical, arbitrary, or capricious.  (People v. Downey, supra, 82 Cal.App.4th at p. 910.)

$2,000 Restitution Fine

Appellant contends, and the Attorney General agrees, that the trial court erred in increasing the restitution fine from $200 to $2,000 in case number F427236.   When appellant was granted probation, he was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 probation revocation fine (§ 1202.44) which was stayed.   The trial court was precluded from increasing the fine upon revocation or termination of probation.  (People v. Arata, supra, 118 CalApp.4th at pp. 201-203;  People v. Johnson (2003) 114 Cal.App.4th 284, 307;   People v. Chambers (1998) 65 Cal.App.4th 819, 820-823 [restitution fine imposed as a condition of probation survives subsequent revocation of probation].)   We accordingly reduce the $2,000 restitution and parole revocation fines in case number F427236 to $200.

With respect to case number F417738, no restitution fine was imposed as a condition of probation.3  The trial court was precluded from ordering appellant to pay a $2,000 restitution fine and a $2,000 parole revocation fine when it revoked probation and sentenced appellant to state prison.  (Ibid.)

$200 Probation Revocation Fine

Respondent argues that the trial court erred in not ordering appellant to pay the $200 probation revocation fine previously imposed and stayed in case number F427236.   We agree.   The trial court, upon revoking probation, was required to lift the stay and order the fine due and payable.  (People v. Guiffre (2008) 167 Cal.App.4th 430, 434.)   Payment of the fine is mandatory.

Conclusion

In case number F427236, the judgment is modified to reduce the $2,000 restitution fine to $200 (§ 1202.4, subd. (b)) and to reduce the $2,000 parole revocation fine to $200 (§ 1202.45).   The trial court is directed to modify Item 9.a. of the abstract of judgment to reflect that the $200 probation revocation fine (§ 1202.44) is now due and payable, probation having been revoked.  (See People v. Guiffre, supra, 167 Cal.App.4th at p. 435.)

In case number F417738, the $2,000 restitution and parole revocation fines are stricken.   The abstract of judgment erroneously states that a serious felony conviction enhancement (§ 667, subd. (a)) was imposed and stayed in case number F417738.   The trial court, however, struck the enhancement when appellant entered the change of plea.

The trial court is directed to issue an amended abstract of judgment reflecting the above modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.   As modified, the judgments are affirmed.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of San Luis Obispo

California Appellate Project, under appointment by the Court of Appeal, Jonathan B Steiner, Executive Director.   Richard B. Lennon and Suzan E. Hier, Staff Attorneys.

FOOTNOTES

FN2. In case number F427236, the trial court sentenced appellant to a three-year upper term for dissuading a witness (§ 136.1, subd. (b)(2), plus two years on the prior prison term enhancements (§ 667.5, subd. (b)).  In case number F417738, appellant received a four-year upper term for corporal injury to a spouse (§ 273.5, subd. (a)), to run concurrent to the five-year sentence in case number F427236..  FN2. In case number F427236, the trial court sentenced appellant to a three-year upper term for dissuading a witness (§ 136.1, subd. (b)(2), plus two years on the prior prison term enhancements (§ 667.5, subd. (b)).  In case number F417738, appellant received a four-year upper term for corporal injury to a spouse (§ 273.5, subd. (a)), to run concurrent to the five-year sentence in case number F427236.

FN3. The plea agreement provided that a $200 restitution fine would be imposed in each case but that only one fine would be collected.   When appellant was granted probation in case number F417738, the trial court stated that it was adopting the recommended terms and conditions of probation and “making them court orders.”   No restitution fine is reflected in the February 23, 2009 Order of Probation nor did the trial court, in pronouncing judgment, impose a restitution fine.   Where a trial court fails to impose a restitution fine and the People do not object, the People are precluded from raising the issue on appeal.  (People v. Tillman (2000) 22 Cal.4th 300, 302-303.).  FN3. The plea agreement provided that a $200 restitution fine would be imposed in each case but that only one fine would be collected.   When appellant was granted probation in case number F417738, the trial court stated that it was adopting the recommended terms and conditions of probation and “making them court orders.”   No restitution fine is reflected in the February 23, 2009 Order of Probation nor did the trial court, in pronouncing judgment, impose a restitution fine.   Where a trial court fails to impose a restitution fine and the People do not object, the People are precluded from raising the issue on appeal.  (People v. Tillman (2000) 22 Cal.4th 300, 302-303.)

GILBERT, P.J. COFFEE, J. Michael L. Duffy, Judge