CITY OF OXNARD v. COUNTY OF VENTURA (1992)

Here we hold that the County of Ventura need not share its fine revenues, collected pursuant to Penal Code section 1203.1, with appellant Cities.   The crucial element of probation, as that term is defined in Penal Code section 1203, subdivision (a), is supervision by the probation officer and not presentence investigation and reports or records which satisfy Penal Code section 1203.10, as Cities contend.¹

The Cities of Oxnard, Camarillo, Fillmore, Moorpark, Ojai, Port Hueneme, Santa Paula, Simi Valley, Thousand Oaks and Ventura (Cities) appeal from a Judgment Denying Petition for Writ of Mandate.   They contend that the trial court erroneously ruled that:  (1) a presentence investigation and report are not required in misdemeanor cases prior to placing defendants on “formal” probation;  (2) records are not required to be maintained by section 1203.10 for defendants on “formal” probation and that records maintained were adequate;  and (3) Vehicle Code section 23197 did not preclude a grant of probation for defendants convicted prior to October 1, 1989.   We affirm the judgment.

FACTS

Section 1463, prior to the 1991 amendments not pertinent hereto, provides in part, that 50 percent of all fines and forfeitures including Vehicle Code fines and forfeitures collected upon conviction or upon the forfeiture of bail from any person arrested by a state officer and charged with the commission of a misdemeanor under the Vehicle Code within a city, shall be transferred into the traffic safety fund of that city.   Prior to September 1, 1987, the County of Ventura (County) distributed a portion of fines collected from persons convicted in Ventura County Municipal Court of driving under the influence of alcohol and/or drugs (DUI) pursuant to Vehicle Code sections 23152 and 23153 and placed on “conditional sentence” (formerly referred to as “summary probation” or “informal probation”) to the Cities pursuant to section 1463.   Beginning September 1987, the County ceased distributing the DUI fine revenues to the Cities and the County, per section 1463, and instead retained all the fine revenues and placed them in its general fund pursuant to section 1203.1.²  This change followed a policy decision of the municipal court judges to place most, if not all, defendants convicted of drunk driving on “formal” probation as opposed to “conditional sentence.”

“Probation,” according to section 1203, subdivision (a), is the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of the probation officer.  “Conditional sentence” is the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to the conditions established by the court without the supervision of the probation officer.   Both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors.

The orders typically imposed after September 1987 include a requirement of probation officer supervision.   However, defendants convicted of DUI and placed on probation are generally not referred to the probation officer for an investigation and report prior to sentencing and not all information listed in 1203.10 is included in the probation records.   Following payment of the fine and successful completion of alcohol information school, the municipal court routinely grants the probation officer's request that drunk driving defendants on probation be converted to “conditional sentence.”

Cities sought (1) a writ of mandate commanding the treasurer and auditor of Ventura County to allocate the fine revenues collected from DUI defendants to each city pursuant to section 1463, (2) a declaration that all fine revenues collected from DUI defendants on formal probation where the requirements of the law have not been met should be distributed pursuant to section 1463, (3) an injunction enjoining the County, the treasurer and auditor from distributing the fine revenues pursuant to section 1203.1 where the requirements of law have not been met concerning grants of formal probation, and (4) an accounting.

The court granted an order for separate trial of the liability phase and Cities filed a motion for issuance of peremptory writ of mandate which the court denied.   The parties stipulated that the trial court's decision in the mandate cause of action would be dispositive of the other causes of action.

DISCUSSION

1. Existence of Formal Probation Measured by Court's Order For Supervision by Probation Officer and Not by Existence or Adequacy of Pre- or Post-sentence Reports.

 Cities assert that they are not challenging the municipal court's decision to place defendants on formal probation nor the individual orders of probation.   Instead they assert that the County cannot retain the fines pursuant to section 1203.1 unless statutory requisites for placing a defendant on probation are met.   According to the Cities, section 1203 has always required that if the court placed a defendant on probation it had to “immediately refer the matter to the probation officer ․” for investigation and report.   As amended in 1929, section 1203 made no distinction between felony and misdemeanor cases, and the court was required to refer the case to the probation officer before a defendant convicted of a misdemeanor could be placed on probation.  (See People v. Municipal Court (1956) 145 Cal.App.2d 767, 303 P.2d 375.)

Section 1203, subdivision (b) provides, in pertinent part, that “in every case in which a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment.   The probation officer shall immediately investigate and make a written report to the court of his or her findings and recommendations, including his or her recommendations as to the granting or denying of probation and the conditions of probation, if granted․”   Subdivision (d) provides, “In every case in which a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence.   If such a case is not referred to the probation officer, in sentencing the person, the court may consider any information concerning the person which could have been included in a probation report․”  (Emphasis added.)

Section 1203b grants all courts the power to suspend the imposition or execution of a sentence and grant a conditional sentence in misdemeanor and infraction cases without referring such cases to the probation officer.   In such case, unless otherwise ordered by the court, persons granted a conditional sentence in the community shall report only to the court.  (Ibid.)  Section 3 of Statutes 1982, chapter 247, provided:  “It is the intent of the Legislature in creating the conditional sentence to clarify supervisory responsibilities over persons convicted of infractions and misdemeanors.   It is not the intent of the Legislature to diminish in any way current powers of or sentencing options available to the courts.   Statute and case law relating to probation summarily granted by the court without referral to the probation officer shall be construed to apply in the same manner to conditional sentences.”

Cities insist that although section 1203 has been rewritten, none of the amendments was intended, and none can be read, to eliminate the long-standing requirement for a presentence investigation and report prior to placing misdemeanor defendants on probation.   They argue that the use of the word “may” in subdivision (d) of section 1203 for misdemeanor defendants, in contrast to the use of the word “shall” in subdivision (b) of that section for felony cases, does not mean that referral to the probation officer for an investigation and report prior to placing a misdemeanor defendant on “formal” probation is discretionary.   Similarly, they argue that section 1203.10 requires that certain post-sentence records be kept for all persons placed on probation and that County does not comply with these requirements for DUI defendants.

The recent case of City of Victorville v. County of San Bernardino (1991) 233 Cal.App.3d 1312, 285 Cal.Rptr. 206 concerned a similar challenge.   There the cities contended that because persons released on “conditional sentence” are not placed on “probation” as those terms are defined in section 1203, fines collected from them must be divided between the county and the cities as provided in section 1463.   The county responded that persons released on conditional sentence are, in effect, on probation because their fines are imposed as part of the terms of revocable release and, pursuant to court order, are collected by employees of the chief probation officer.

The appellate court held that the county's arguments are foreclosed by the unambiguous language of section 1203.1 which limits its allocation provision to fines imposed as a condition of the granting of probation or as part of the terms thereof.   The court held that because the orders in question did not call for supervision by the probation officer, they could not meet the definition of “probation” and thus, could not invoke the provisions of section 1203.1.  (233 Cal.App.3d 1312, 1319, 285 Cal.Rptr. 206.)   The county could not alter the legal effect of a conditional sentence after its imposition by using probation officers as fine collectors or to conduct work release programs.  (Id., at pp. 1316–1317, 285 Cal.Rptr. 206.)

The reviewing court in Victorville found support in 66 Ops.Cal.Atty.Gen. 480, 482, fn. 5 (1983):  “ ‘The use of the words “condition of probation” and “part of the terms of probation” in section 1203.1 indicates that the Legislature intended section 1203.1 to apply only to such supervised probation and not so-called summary probation under which the probation officer is “not responsible in any way for supervising or accounting for such persons.”  (§ 1203b.)   At the time the pertinent language of section 1203.1 was enacted (Stats.1939, ch. 986, § 1) all probation was supervised.  [Citation.]’ ”  (Id., at p. 1320, 285 Cal.Rptr. 206.)

Section 1203.1 has only two express conditions:  (1) the fine must be assessed as a term or condition of probation;  and (2) the fines must be collected by a probation officer.   Cities do not dispute that the fines are collected by the probation officer.   Here, the orders placing defendants on probation advised that they were released “on formal probation for 36 months,” must report to the corrections service agency, and were under the supervision of a probation officer.³  Two declarations of municipal court judges explained that due to the threat DUI drivers placed on society, probation supervision was needed and preferred to conditional sentences.   The chief probation officer and his staff designed the DUI probation program, classifying by level of risk the reporting requirement.   Implementation of the DUI probation program resulted in a 60 percent expansion of the personnel in the Correction Services Agency, and the County to date has not fully recouped the cost of the program from the fine revenues.

Section 1203a gives the courts power in misdemeanor cases to refer cases, demand reports and to do and require all things necessary to carry out the purposes of section 1203 insofar as they are applicable to misdemeanors.   When a court directs the probation officer to do so, the probation officer “shall ․ inquire into the antecedents, character, history, family environment, and offense of such person, ․” (§ 1203.10.)

Vehicle Code section 23205 provides that upon any conviction of a violation of 23152 or 23153, any judge of the court “may order a presentence investigation to determine whether a person convicted of the violation would benefit from one or more education, training, or treatment programs, ․,” and in determining whether to require, as a condition of probation, the participation in a program pursuant to subdivision (b) of section 23161, may consider any relevant information about the person made available pursuant to a “presentence investigation, which is permitted but not required by subdivision (a), or other screening procedure.”

Similarly, 74 Ops.Cal.Atty.Gen. 32, 90–802 of March 20, 1991, indicates that a presentence report was not mandatory to probation as that term is defined in section 1203:  “Under [section 1203, subdivision (d) ], a court may, but need not, refer the matter to the probation officer for investigation and report.”  (74 Atty.Gen.Ops. at p. 34;  see also the Legislative Counsel's Digest (Stats.1981, ch. 1142, p. 376 and 1982 ch. 247, p. 94.)

Thus, construing all the pertinent code sections together, it appears that the existence of formal probation is measured by supervision by a probation officer and not by pre-sentence investigation or other reports.   Probation means a supervised freedom.

 Moreover, as respondent indicates, failure to order a probation investigation and report where one is mandated in a felony case is an error of procedure, violation of which does not result in reversal of judgment for new trial but rather for the purpose of proceedings in accordance with the statutory procedure.  (People v. Rojas (1962) 57 Cal.2d 676, 683, 21 Cal.Rptr. 564, 371 P.2d 300;  People v. Municipal Court, supra, 145 Cal.App.2d 767, 776, 303 P.2d 375;  People v. Lopez (1941) 43 Cal.App.2d, (Supp.) 854, 859, 110 P.2d 140.)

Even in these early cases courts recognized that the import of the statutory mandate was the defendant's reporting and supervision either by court or probation officer.  (People v. Municipal Court, supra, 145 Cal.App.2d 767, 777, 303 P.2d 375.)   Nothing in section 1203.1 or 1203 requires the maintenance of particular records.   Even assuming the probation officer has not maintained adequate records under section 1203.10, the remedy is not remittance to the county of fines imposed as a condition of probation under the supervision of a probation officer.

2. Vehicle Code Section 23197 Does Not—and Did Not—Prohibit Formal Probation to DUI Offenders.

 From January 1, 1987, until October 1, 1989, Vehicle Code section 23197 provided that an order granting probation to a DUI defendant was a judgment of a conditional sentence within the meaning of section 1203, subdivisions (a) and (d), and any fine, restitution, or assessment imposed as a condition of probation is a judgment for a fine within the meaning of section 1214 for the enforcement of money judgments.   Cities insist that fines collected between January 1, 1987, and October 1, 1989, were a term of “conditional sentences” and should have been distributed according to section 1463.   We disagree.

The 1986 addition of Vehicle Code sections 23196 and 23197 were part of the Alcohol Abuse Education and Prevention Act of 1986 (Sen. Bill No. 920 (1985–1986 Reg.Sess.);   Stats.1986, ch. 1118, p. 3938) and related to funding of alcohol abuse education and prevention programs.  Section 23197 added in 1986 was repealed by urgency legislation in 1989 and reenacted to make a fine, restitution, or assessment imposed as a condition of probation or conditional sentence enforceable as a money judgment and to make a willful failure to pay a fine, restitution, or assessment a violation of the terms and conditions of probation.  (Sen. Bill No. 731 (1989–1990 Reg.Sess.);   Stats.1989, ch. 1297, No. 9 West's Cal. Legis. Service, p. 4471.)

The Historical Note 67 West's Annotated Vehicle Code (1991 cum. pocket pt.) section 23197, page 75, to reenacted section 23197 states that “․ (a) Chapter 1118 of the Statutes of 1986 contained ambiguous language pertaining to the order of probation for persons convicted of driving while under the influence of alcohol or drugs.   Some jurisdictions have interpreted this provision to preclude the court from placing a defendant on formal probation under the supervision of a probation officer․  [¶] In order to ensure that the court has the ability, when deemed appropriate, to order formal probation for persons convicted of driving under the influence of alcohol or drugs and to eliminate, before the September 1989 submission due date of the county alcohol and drug plans, the costs associated with the unnecessary duplication of effort, it is necessary for this act to take effect immediately.”

Former section 23197 did not preclude a court from placing a DUI defendant on formal probation.   Rather, the legislative intent, as illustrated by section 23196, was to allow collection and enforcement of the specified alcohol abuse education and prevention penalty assessment of not more than $50 as money judgments whether or not the court referred the case to a probation officer under formal probation or simply ordered the fine assessment as a term of a conditional sentence.   Further, “․ if probation is granted, the payment of the penalty assessment shall also be ordered as a condition of probation, ․”  (§ 23196;  see also Sen. Bill No. 920, supra;  Stats.1986, ch. 1118, § 5, p. 3940;  emphasis added.)

If the Legislature had originally intended to carve out a DUI exception to section 1203.1 or to prevent probation for DUI offenders, it could have done so.   It did not.

The judgment is affirmed.   Costs to respondent.

FOOTNOTES

1.   All statutory references hereinafter are to the Penal Code unless otherwise specified.

2.   Section 1203.1 provides, in pertinent part, that “․ all fines collected by a county probation officer in any of the courts of this state, as a condition of the granting of probation or as a part of the terms of probation, shall be paid into the county treasury and placed in the general fund for the use and benefit of the county.”

3.   Section 1202.8 provides that “Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation.”

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.