Filed 4/23/14 P. v. Knapp CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059322
v. (Super.Ct.No. FVI1102486)
MICHAEL RENE KNAPP, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
1
In December 2011, defendant and appellant Michael Rene Knapp pled no contest
to corporal injury to a spouse (Pen. Code, § 273.5, subd. (a));1 in return, defendant was
placed on probation for a period of 36 months on various terms and conditions.
Defendant subsequently violated the terms and conditions of his probation. Following a
probation revocation hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451 (Vickers),
the trial court found that defendant had violated the terms of his probation and sentenced
defendant to an aggravated term of four years in state prison. The trial court also ordered
defendant to pay various fines, including a $240 restitution fine pursuant to section
1202.4 and a stayed $240 parole revocation restitution fine pursuant to section 1202.45.
On appeal, defendant contends that (1) the trial court abused its discretion in
refusing to reinstate him on probation and failing to articulate its reasons for imposing an
aggravated term; and (2) the trial court’s imposition of a $240 restitution fine and a $240
parole revocation restitution fine (stayed) violates federal and California proscriptions
against ex post facto laws. We reject these contentions and affirm the judgment.
1 All future statutory references are to the Penal Code unless otherwise stated.
2
I
FACTUAL AND PROCEDURAL BACKGROUND2
On October 26, 2011, defendant and his wife got into an argument over a cellular
telephone. During the argument, defendant hit his wife in the face several times. He also
choked her until she became unconscious. As a result, defendant’s wife suffered
bruising, scratches, lacerations, and swollen lips. Defendant denied attacking his wife.
On November 9, 2011, an information was filed charging defendant with inflicting
corporal injury on a spouse (§ 273.5, subd. (a)). The information also alleged that
defendant had served three prior prison terms (§ 667.5, subd. (b)).
On December 16, 2011, defendant pled no contest to the charge; in return, the
prior prison terms were stricken.
On January 27, 2012, imposition of sentence was suspended and defendant was
granted supervised probation for a period of 36 months on various terms and conditions.
He was also ordered to serve 365 days in county jail with credit for time served. Among
other conditions, defendant was ordered to enroll in a 52-week domestic violence
program and report to court on August 8, 2012. On August 8, 2012, defendant failed to
appear and a warrant was issued for his arrest.
On July 19, 2013, a Vickers probation revocation hearing was held. At that time,
defendant’s probation officer testified that defendant never made an attempt to contact
2 The factual background of the underlying offense is taken from the probation
officer’s report.
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probation following his release from custody. Defendant’s probation officer also stated
that he spoke with defendant on May 29, 2013, and defendant stated that he did not enroll
in a domestic violence program because he did not know he was on probation. Defendant
claimed that he believed he was off probation when he was released from jail; that he was
new to probation; and that he had never been involved with the law before. However,
defendant had a lengthy criminal history dating back to 1980; he had been to prison twice
and had 10 prior grants of probation.
At the conclusion of the hearing, the trial court found that defendant violated the
terms of his probation. The court thereafter proceeded to sentencing, and noted that it
had an eight-page supplemental probation report.
The probation report recommended that defendant receive the aggravated term of
four years based on the following factors in aggravation: (1) the crime involved great
violence; (2) the victim was particularly vulnerable; (3) defendant engaged in violent
conduct indicating a serious danger to society; (4) defendant’s prior convictions are
numerous and of increasing seriousness; (5) defendant had served prior prison terms;
(6) defendant was on parole when he committed the current crime; and (7) defendant’s
prior performance on probation and parole was unsatisfactory. There were no factors
listed in mitigation.
Defense counsel informed the court that he understood defendant had a lengthy
criminal history and that defendant had been in and out of custody, but that defendant
was getting older, had a history of abusing drugs, and had taken it upon himself to better
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his life. Defense counsel explained that since defendant’s release from jail, defendant
had been living in a sober living house and that he had been attending drug and alcohol
treatment programs, as well as life skills and anger management classes. Defense
counsel noted that defendant was one of the “best residents” at the sober living home and
was attempting to become a beneficial member of society. Defendant and his counsel
requested that defendant be reinstated on probation.
The trial court stated that the problem “really is [defendant’s] record,” noting that
it was “horrendous, almost two full pages.” The court thereafter asked the probation
officer, based on what he had heard, if he was inclined to make a different
recommendation. The probation officer stated, “No. I am not.” The court then asked the
probation officer why he had chosen the aggravated term as opposed to the middle or
mitigated term. The probation officer explained, “Just for [defendant] taking no
responsibility for his action. He has a lengthy history, and he basically just told me . . . I
don’t know nothing about this. Not only that, he was on parole, too, at the time; that
he absconded for a year according to his parole agent. So in addition to not
complying with probation, he failed to comply with parole terms and conditions, too.”
The court thereafter sentenced defendant to four years in state prison with credit for time
served and ordered defendant to pay various fines, including a $240 restitution fine
pursuant to section 1202.4 and a stayed $240 parole revocation restitution fine pursuant
to section 1202.45.
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II
DISCUSSION
A. Imposition of Aggravated Term
Defendant complains the trial court abused its discretion in refusing to reinstate
him on probation. He also argues the court erred in failing to state its reasons for
declining to reinstate his probation and selecting the upper term of four years. The
People respond defendant forfeited his claim that the court failed to state sufficient valid
reasons for imposing the aggravated term for failing to object below. In the alternative,
the People maintain defendant’s claim lacks merit and, even if the court erred, it was
harmless.
Initially, we agree with the People that defendant, by failing to object at trial,
forfeited his claim that refusal to reinstate probation and imposing the upper term was
improper on the ground that the trial court failed to state on the record its reasons for its
sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353 [“We conclude that the
waiver doctrine should apply to claims involving the trial court’s failure to properly make
or articulate its discretionary sentencing choices.”]; see also People v. Velasquez (2007)
152 Cal.App.4th 1503, 1511; People v. Davis (1995) 10 Cal.4th 463, 552.)
In People v. Gonzalez (2003) 31 Cal.4th 745, our Supreme Court reaffirmed the
waiver doctrine articulated in Scott and rejected the argument that the waiver doctrine is
inapplicable if the court does not issue a tentative decision. (Id. at p. 748.) The court
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noted, “It is only if the trial court fails to give the parties any meaningful opportunity to
object that the Scott rule becomes inapplicable.” (Id. at p. 752.)
Here, though defendant had an opportunity to object, he did not object at
sentencing that the trial court purportedly failed to state sufficient valid reasons in
denying probation and imposing the upper term. Having failed to bring the issue to the
court’s attention, defendant cannot argue this claim on appeal. (People v. Scott, supra,
9 Cal.4th at pp. 353-355.)
Additionally, we reject defendant’s claim that the trial court abused its discretion
in refusing to reinstate him on probation and selecting the upper term. Courts have broad
sentencing discretion, and we review a trial court’s sentencing choices, including whether
to reinstate probation or impose a prison sentence, and whether to impose the upper term,
for abuse of discretion. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583;
People v. Downey (2000) 82 Cal.App.4th 899, 909.) We reverse only if there is a clear
showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th
825, 847; People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) A trial court abuses
its discretion if it relies upon circumstances that are not relevant to, or that otherwise
constitute an improper basis for, the sentencing decision. (People v. Sandoval, supra, at
p. 847; People v. Moberly, supra, at p. 1196.)
California Rules of Court, rule 4.435(b)(1), provides in pertinent part that when a
court imposes sentence after revoking probation, “[t]he length of the sentence must be
based on circumstances existing at the time probation was granted, and subsequent events
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may not be considered in selecting the base term or in deciding whether to strike the
additional punishment for enhancements charged and found.” The rule “clearly prohibits
the superior court from considering events subsequent to the grant of probation when
determining the length of a prison term upon revocation of probation.” (People v.
Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.) The “spirit and purpose of the rule”
is to “preclude the possibility that a defendant’s bad acts while on probation” will
influence his sentence upon revocation of probation.3 (Id. at p. 1163.) On the other
hand, it is well settled that a court may consider events occurring subsequent to a
probation grant when deciding whether to revoke or reinstate probation. (People v. White
(1982) 133 Cal.App.3d 677, 681; People v. Jones (1990) 224 Cal.App.3d 1309, 1316,
fn. 4; People v. Ayub (1988) 202 Cal.App.3d 901, 905.)
Our review of the record shows that the trial court did not abuse its discretion in
refusing to reinstate probation and selecting the upper term. As noted above, the record
clearly shows that defendant intentionally disobeyed the terms and conditions of his
probation and appeared to take no responsibility for his actions. The criteria affecting
reinstating probation, including the circumstances in mitigation and aggravation, were
presented to the court in the probation report as well as by defense counsel’s argument.
The court was well aware of defendant’s reasons for his noncompliance with the
3 California Rules of Court, rule 4.435 does not preclude a sentencing court’s
consideration of events occurring between an initial grant of probation and a
reinstatement of probation. (People v. Black (2009) 176 Cal.App.4th 145, 150-151;
People v. Harris (1990) 226 Cal.App.3d 141, 145.) Here, however, probation was never
revoked and reinstated, and Harris and its progeny are inapplicable.
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probation terms, i.e., that he believed he was off probation when he was released from
jail and that he was new to probation. The court was also aware that defendant had a
lengthy criminal history, which included two prior prison terms and 10 prior grants of
probation. Even though defendant had been given opportunities to succeed on probation,
defendant had failed to demonstrate a desire to change his noncompliant behaviors as
evidenced by the record. The trial court considered defendant’s history, the arguments of
counsel, and the probation report submitted at sentencing. It was not required to set out
its reasons for either rejecting or minimizing the mitigating factors asserted in defense
counsel’s argument. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.)
The trial court also did not abuse its discretion in imposing the upper term.
Although the court only specifically cited defendant’s lengthy criminal history, there
were many other valid factors in aggravation to support the imposition of an upper term,
such as the crime involved great violence, defendant’s prior performances on probation
and parole, and the fact that defendant was on parole when he committed the current
crime. Moreover, a single factor in aggravation is sufficient to support imposition of an
upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Defendant does not dispute
the factors that he has a lengthy criminal history, that his prior performances on probation
and parole were unsatisfactory, and that he was on parole when he committed the current
crime. Thus, even if defendant had objected to the trial court’s failure to articulate
sufficient reasons in refusing to reinstate probation and selecting the upper term, the
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defendant would not obtain a more favorable outcome. Based on the numerous factors in
aggravation, we discern no abuse of discretion in the imposition of the upper term.
In the absence of any showing that the court’s decision was arbitrary or capricious,
we conclude the trial court did not abuse its discretion when it denied defendant’s request
to reinstate his probation and selected the upper term.
B. Restitution Fine
“It is well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto clause and
other constitutional provisions.” (See People v. Souza (2012) 54 Cal.4th 90, 143.) Thus,
a defendant may challenge the imposition of a restitution fine under section 1202.4 as
violating the ex post facto clauses of the California and federal constitutions, if the fine is
greater than authorized by section 1202.4 at the time he committed his crimes. (Ibid.)
Section 1202.4 mandates that the trial court order a convicted defendant to pay a
restitution fine “unless [the court] finds compelling and extraordinary reasons for not
doing so and states those reasons on the record.” (§ 1202.4, subd. (b).) If the defendant
is convicted of a felony, the amount of the restitution fine “shall be set at the discretion of
the court” and cannot be less than $240 (starting January 1, 2012), or greater than
$10,000.4 (§ 1202.4, subd. (b)(1).) However, at the time defendant committed his crime,
4 The minimum amount increases to $280, starting January 1, 2013, and to $300,
starting January 1, 2014. (§ 1202.4, subd. (b)(1).)
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the amount of a restitution fine under former section 1202.4 ranged from $200 to
$10,000. (See Souza, supra, 54 Cal.4th at p. 143 [explaining former section 1202.4].)
Accordingly, defendant now contends the restitution fine should be reduced to
$200. Similarly, because the parole revocation restitution fine must match the restitution
fine (§ 1202.45), he asks that this fine also be reduced to $200. However, defendant
failed to object to the amount of the restitution fine and the parole revocation fine in the
trial court, and thus has forfeited any challenge to the amounts of these fines.
As previously noted, the failure to make a timely and meaningful objection forfeits
or waives certain claims on appeal. (People v. Scott, supra, 9 Cal.4th 331, 351.) In Scott,
the California Supreme Court held that these claims include “complaints about the
manner in which the trial court exercises its sentencing discretion and articulates its
supporting reasons.” (Id. at p. 356.) “In essence, claims deemed waived on appeal
involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Id. at p. 354.) “The appropriate amount of
restitution is precisely the sort of factual determination that can and should be brought to
the trial court’s attention if the defendant believes the award is excessive.” (People v.
Garcia (2010) 185 Cal.App.4th 1203, 1218 [Fourth Dist., Div. Two].) As this court held
in Garcia, “because defendant did not object to the amount of restitution in the trial court,
he forfeited our consideration of the issue on appeal.” (Ibid.)
Defendant requests that this court nonetheless consider his claim on the merits.
We decline to do so, and note that our Supreme Court has stated that “the ‘unauthorized
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sentence’ concept constitutes a narrow exception to the general requirement that only
those claims properly raised and preserved by the parties are reviewable on appeal.
[Citations.]” (People v. Scott, supra, 9 Cal.4th at p. 354.) “Although the cases are
varied, a sentence is generally ‘unauthorized’ where it could not lawfully be imposed
under any circumstance in the particular case.” (Ibid.) Here, the trial court could have
imposed a restitution fine and a parole revocation fine in any amount between $200 and
$10,000. As the actual restitution fine and the stayed-parole revocation fine fell within
that range, the restitution order was not unauthorized.
Because the $240 fines were not unauthorized, defendant forfeited any claim that
the trial court mistakenly imposed more than the minimum fine by not raising it at the
sentencing hearing.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
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