Filed 4/19/16 P. v. Michaud CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----


THE PEOPLE,                                                                                  C072507

                   Plaintiff and Respondent,                                      (Super. Ct. No. CRF1293)

         v.

RHONDA MARIE MICHAUD,

                   Defendant and Appellant.




         Defendant Rhonda Marie Michaud appeals from a judgment imposed after her
probation was revoked and she was sentenced to local prison for 16 months. She
contends the trial court (1) erred in revoking her probation, (2) imposed a penalty
assessment pursuant to Government Code section 76000 in excess of that permitted by
law, and (3) erred in failing to award her three additional days of presentence credit. The
first contention lacks merit. The second contention fails because defendant did not
establish an adequate appellate record and we must presume the trial court employed the
correct formula in assessing the penalty assessments. The People concede the third
contention and we agree. Because defendant had already completed her sentence before



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briefing in this appeal began, we remand to the trial court with directions to credit her
$30 per day and allocate that credit against her fines and penalty assessments in
compliance with Penal Code section 2900.5, subdivision (a).1
                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant entered a negotiated plea of no contest to possessing methamphetamine
for sale and was granted probation, conditioned on her serving 365 days in jail, among
other things. Other conditions of her probation included participation in and successful
completion of a six- to eighteen-month residential drug treatment program to be
recommended by the probation department, and participation in psychiatric or
psychological counseling, as directed by the probation department.
       Within two months of defendant’s plea agreement, however, the probation
department wrote a letter to the court, asking that defendant’s probation be modified to
365 days in jail, with probation to terminate thereafter, because defendant’s mental health
status renders her incapable of complying with the conditions of her probation. The letter
stated: “Since the defendant has been in custody, it has become apparent her mental
health issues are more significant than first thought. A mental health counselor at the jail
has attempted to speak with her, but she refuses all attempts to help her. She has
continued to display a lack of understanding of the court process and the consequences
for failing to comply with court orders.”
       The letter continued: “The defendant has filed numerous grievances against jail
staff ranging from their refusal to open investigations into a stolen car or that arresting
officers stole money from her. She has called the probation department obsessively from
jail, complaining that she wants to sue the sheriff’s department for stealing her money,
she wants to challenge the probable cause that led to her arrest, she claims she wasn’t



1 Undesignated section references are to the Penal Code in effect at the time of the
charged offenses.

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adequately represented and believes the entire court process was unfair. Despite the
probation officer’s attempts to redirect her, the defendant fixates on getting out of jail so
she can be with her father and properly bury her mother. The probation officer has tried
to explain that probation has no ability to address her various grievances and that the
officer is simply trying to place her into a drug treatment program. The defendant now
states, in contradiction to her statements in the presentence report, that she does not need
drug treatment and in fact refuses to enter a residential program. Apparently she believes
once she completes her jail sentence, her responsibilities to probation and the court will
be over. The probation officer has tried to explain this is not the case, but the defendant
appears unable to understand. She has also made statements that she will refuse to attend
mental health treatment if released from custody.”
       The trial court conducted a hearing on the probation department’s request, at
which the prosecutor requested instead that the court find that a grant of probation is no
longer a viable option and sentence defendant based on the recommendation contained in
the existing presentence probation report. The trial court declined to revoke defendant’s
probation, noting that defendant had so far only committed an “anticipatory violation of
probation,” and reminding defendant that if she fails to follow the court’s orders,
“meaning when probation directs you to a program, you go to it,” probation will be
revoked and she could face up to three years in custody.
       Less than three months later, the probation department petitioned to revoke
defendant’s probation, on the grounds defendant: (1) twice met with the probation officer
to locate a residential drug treatment program to fulfill the probation condition that
defendant complete such a program, but defendant denied she had a drug problem and
refused to enter any drug treatment program; and (2) twice refused to meet with the jail
staff mental health physician, in violation of the probation condition that she participate
in mental health counseling services and follow the treatment plan directed by the mental
health staff.

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       At the contested hearing on the violation of probation petition, defendant’s
probation officer testified that defendant filled out an application to a Salvation Army
drug treatment program, but she wrote on the application form that she was being held in
the jail against her will and denied access to legal counsel and medical help. The
program director concluded defendant’s “ramblings at the end of her application”
overrode the other statements on the application and indicated she would not be
successful in their program. Thereafter, defendant “adamantly refused to go to any drug
treatment program” and told her probation officer she did not have drug problems.
       As for defendant’s alleged refusal to meet with the jail staff mental health
physician, defendant’s probation officer testified he met with defendant to refer her to jail
mental health services. In that meeting, he gave defendant directives to sign requiring her
to comply with counselors and mental health services as directed by the mental health
workers, but she refused to sign. The officer arranged for defendant to be assessed by
Dr. Zil,2 but defendant was not told about this specific referral. When urged by jail staff
to get up out of bed because “Dr. Zil[] wanted to speak with her,” defendant did not
move. When jail staff came back to her cell, defendant refused to get up. As jail staff
was walking away, defendant said she would go to the appointment. Defendant walked
with staff to meet with Dr. Zil, but ultimately refused to meet with the doctor because she
had forgotten her glasses.
       The trial court found both allegations true and found defendant in violation of her
probation. “I think the allegations have been proven. The defendant is not complying
with the spirit of the probation order. She’s being difficult. She’s setting the terms.
She’s not going to meet with Dr. Zil[] unless she has her glasses. Well, it’s not up to her
to make that determination. She was given the opportunity. She was told to meet with



2 We follow the parties’ spelling of Dr. Zil’s last name in their briefing. Dr. Zil’s first
name does not appear in the record.

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the doctor. She should have met with the doctor. . . . And I’m finding she’s also in
violation of the order that she complete and pay the cost of a 6-to-18-month rehab she
was ordered to complete. She put information on the application herself that caused the
application to be rejected. She has nobody to blame but herself. . . . Then she indicates
to the probation officer she’s not going to go to a drug treatment program anyway. There
isn’t anything more that Probation could do for her. They can’t fill it out for her. They
can’t take her there and make her do the program. She said she’s not going to do it.
She’s not complying with the orders of the Probation Department or the orders of the
Court. . . . She’s in violation clearly in this matter.”
       Having determined defendant is not amenable to probation, the trial court
sentenced her to serve the low term of 16 months in local prison. (§ 1170,
subd. (h)(5)(A).)
                                        DISCUSSION
                                I. Revocation of Probation
       Defendant claims the court erred in revoking her probation based on a finding she
violated the “spirit of her probation,” and the evidence does not support a conclusion she
willfully violated any condition of her probation. We disagree with both contentions.
       “[S]ection 1203.2,[3] subdivision (a) authorizes a trial court to revoke probation ‘if
the interests of justice so require and the court, in its judgment, has reason to believe from



3 At all relevant times, section 1203.2, subdivision (a), provides in full: “At any time
during the period of supervision of a person (1) released on probation under the care of a
probation officer pursuant to this chapter, (2) released on conditional sentence or
summary probation not under the care of a probation officer, (3) placed on mandatory
supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section
1170, (4) subject to revocation of postrelease community supervision pursuant to Section
3455, or (5) subject to revocation of parole supervision pursuant to Section 3000.08, if
any probation officer, parole officer, or peace officer has probable cause to believe that
the supervised person is violating any term or condition of his or her supervision, the
officer may, without warrant or other process and at any time until the final disposition of

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the report of the probation officer or otherwise that the person has violated any of the
conditions of his or her probation . . . .’ ” (People v. Jackson (2005) 134 Cal.App.4th
929, 935; see also In re Alex U. (2007) 158 Cal.App.4th 259, 265.) “ ‘As the language of
section 1203.2 would suggest, the determination whether to . . . revoke probation is
largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be
proven by a preponderance of the evidence.’ [Citation.] However, the evidence must
support a conclusion the probationer’s conduct constituted a willful violation of the terms
and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982;
see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066.)
       We review a probation revocation decision pursuant to the substantial evidence
standard of review and accord great deference to the trial court’s decision, bearing in
mind that “ ‘[p]robation is not a matter of right but an act of clemency, the granting and
revocation of which are entirely within the sound discretion of the trial court.
[Citations.]’ [Citation.] [¶] ‘The discretion of the court to revoke probation is analogous
to its power to grant the probation, and the court’s discretion will not be disturbed in the
absence of a showing of abusive or arbitrary action. [Citations.]’ [Citation.] ‘Many
times circumstances not warranting a conviction may fully justify a court in revoking



the case, rearrest the supervised person and bring him or her before the court or the court
may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon
the issuance of a warrant for rearrest the court may revoke and terminate the supervision
of the person if the interests of justice so require and the court, in its judgment, has reason
to believe from the report of the probation or parole officer or otherwise that the person
has violated any of the conditions of his or her supervision, has become abandoned to
improper associates or a vicious life, or has subsequently committed other offenses,
regardless whether he or she has been prosecuted for such offenses. However, the court
shall not terminate parole pursuant to this section. Supervision shall not be revoked for
failure of a person to make restitution imposed as a condition of supervision unless the
court determines that the defendant has willfully failed to pay and has the ability to pay.
Restitution shall be consistent with a person’s ability to pay. The revocation, summary or
otherwise, shall serve to toll the running of the period of supervision.”

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probation granted on a prior offense. [Citation.]’ [Citation.] ‘ “[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. . . .” ’ [Citation.] And the burden of demonstrating an
abuse of the trial court’s discretion rests squarely on the defendant.” (People v. Urke
(2011) 197 Cal.App.4th 766, 773.)
       As a threshold matter, we disagree with defendant’s contention that the trial court
violated her probation based on a finding that she “ ‘[was] not complying with the spirit
of the probation order.’ ” The trial court expressly found that the allegations of the
violation of probation petition “have been proven”; defendant is “also in violation of the
order” that she complete a drug treatment program; defendant is “not complying with the
orders of the Probation Department or the orders of the Court”; and “[s]he’s in violation
clearly in this matter.” These statements are sufficient to constitute the trial court’s
findings that defendant violated the conditions of her probation within the meaning of
section 1203.2.
       In any event, “there is no abuse of discretion in revocation where it appears from
the record that the accused has violated the terms and conditions of probation.” (People
v. Nelson (1967) 257 Cal.App.2d 282, 285-286.) Here, substantial evidence supports the
conclusion that defendant violated the conditions of her probation.
       As to the condition defendant participate in and complete a residential drug
treatment program, defendant argues on appeal she in fact complied with that condition
by submitting an application to the only program offered to her by the probation
department. However, the trial court found that defendant intentionally sabotaged this
application by writing pleas for help at the end of the application. Not only do we defer
to the court’s conclusion (see People v. Urke, supra, 197 Cal.App.4th at p. 773), but any
ambiguity regarding whether defendant intended her application to further her
compliance with this condition of probation is eliminated by her express and adamant
refusal to go into any drug treatment program.

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       Nor has defendant shown the trial court abused its discretion in concluding she
violated the condition of her probation requiring her to participate in psychiatric or
psychological counseling, as directed by the probation department. Probation is “an act
of clemency and grace.” (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) A trial court
has very broad discretion in denying and revoking probation and an appellate court
interferes with that discretion “ ‘only in a very extreme case.’ ” (Id. at p. 443.) Such a
case does not present itself here.
       Defendant argues her actions in refusing to meet with Dr. Zil when she was
without her eyeglasses cannot be construed as a violation of probation because the
probation order failed to give her notice she was required to meet with the jail’s mental
health doctor, and she was not informed that meeting with Dr. Zil was connected to a
probation condition. But the trial court was also entitled to consider that defendant
refused to meet with Dr. Zil after first refusing to sign a directive that she comply with
counselors and mental health services to get the psychological treatment which was a
condition of her probation. The trial court’s decision to revoke probation was not
arbitrary. There was no abuse of discretion.
                    II. Government Code Section 76000 Penalty Assessment
       Defendant challenges the amount of the county penalty assessment levied pursuant
to Government Code section 76000 upon the fees imposed pursuant to Health and Safety
Code sections 11372.5 and 11372.7. She contends the county penalty assessments should
have been $15 on the Health and Safety Code section 11372.5 fee and $45 on the Health
and Safety Code section 11372.7 fee. The People respond that defendant has forfeited
this claim for failure to object in the trial court and, in any event, the record precludes our
determination of whether the amount to be collected under Government Code section
76000 is correct.
       Defendant did not forfeit the claim in the trial court by failing to object at
sentencing. Nowhere in the presentence probation report, the transcript or minute order

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of the plea or sentencing proceedings or the original abstract of judgment is there
identified a penalty assessment imposed under Government Code section 76000. The
assessments were first identified by the trial court when it filed an amended abstract of
judgment at the request of defendant’s appellate counsel while this appeal was pending.
       Section 76000 states in pertinent part, “[T]here shall be levied an additional
penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten
dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts
for all criminal offenses . . . .” (Gov. Code, § 76000, subd. (a)(1).) But subdivision (e) of
section 76000 of the Government Code states that “[t]he seven-dollar ($7) additional
penalty authorized by subdivision (a) shall be reduced in each county by the additional
penalty amount assessed by the county for the local courthouse construction fund
established by [Government Code] Section 76100 as of January 1, 1998, when the money
in that fund is transferred to the state under [Government Code] Section 70402. The
amount each county shall charge as an additional penalty under this section shall be as
follows[,]” and the amount Yuba County is authorized to levy as an additional penalty for
every $10 imposed and collected by the trial court as a fine, penalty, or forfeiture for
criminal offenses is $3. (Gov. Code, § 76000, subd. (e), italics added.) Based on this,
defendant contends her penalty assessment should have been $15 not $35 for the Health
and Safety Code section 11372.5 fine and $45 not $105 for the Health and Safety Code
section 11372.7 fine. Defendant asks us to correct this purported error and direct the trial
court to impose those lower amounts.
       However, defendant failed to establish she is entitled to the relief she requests.
She failed to provide this court with any proof that the county established a local
courthouse construction fund under Government Code section 76000. (Cf. People v.
McCoy (2007) 156 Cal.App.4th 1246, 1254 [referencing the Los Angeles County Board
of Supervisors resolution regarding Gov. Code, § 76000, subd. (a)].) Defendant bears the
burden of providing an adequate record affirmatively proving error. In the absence of

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such proof, we presume the trial court’s judgment is correct. “All intendments and
presumptions are indulged to support [the trial court’s judgment] on matters as to which
the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) “ ‘It is a basic presumption indulged in by reviewing courts
that the trial court is presumed to have known and applied the correct statutory. . . law in
the exercise of its official duties.’ ” (Keep Our Mountains Quiet v. County of Santa
Clara (2015) 236 Cal.App.4th 714, 741, citing People v. Mack (1986) 178 Cal.App.3d
1026, 1032.)
       Thus, in the absence of contrary evidence in the record, we presume that the trial
court was aware of the actions of the county served by the court and imposed the $7 for
$10 assessment because defendants in that county are not eligible for the reduction in
Government Code section 76000, subdivision (e).
                          III. Defendant’s Presentence Credits
       Defendant contends, and the People agree, that the trial court should have awarded
defendant 408 total days’ presentence credit, rather than 405, as the court ordered.4 The
failure to accurately award presentence custody credits is an unauthorized sentence and




4 Defendant had three separate periods of pretrial incarceration. As the parties note, the
calculation of pretrial custody credits begins on the day a defendant is arrested and
continues through the end of the presentence local custody, including partial days as
complete days. (See People v. King (1992) 3 Cal.App.4th 882, 886.) Based on this,
defendant and the People agree that defendant should have been awarded an additional
day of pretrial custody credit for the first and second periods of incarceration. Both
parties point out that defendant was erroneously awarded one day of pretrial custody
credit for the third period of incarceration. With the appropriate adjustments, defendant
was entitled to 204, not the 203 days of pretrial custody credit the court awarded. As for
conduct credit, both parties agree that under the October 2, 2011, enactment of section
4019, defendant was entitled to 204 days of conduct credit instead of the 202 days
awarded by the court. The net result is that defendant should have received three days in
addition to the 405 days awarded by the trial court.

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may be corrected at any time. (In re Ricky H. (1981) 30 Cal.3d 176, 191; see also § 1170,
subd. (d)(1); People v. Johnson (2004) 32 Cal.4th 260, 266.)
       Defendant says that as of the time she filed her opening brief, she had already
served her term of incarceration. In this circumstance, defendant asserts she is entitled to
have the excess incarceration credited against certain qualifying fines at a rate of $30 per
day, for a total of $90 here. Section 2900.5, subdivision (a), provides in pertinent part:
“In all felony and misdemeanor convictions . . . when the defendant has been in custody, .
. . all days of custody of the defendant, including days . . . credited to the period of
confinement pursuant to Section 4019, . . . shall be credited upon his or her term of
imprisonment, or credited to any fine on a proportional basis, including, but not limited
to, base fines and restitution fines, which may be imposed, at the rate of not less than
thirty dollars ($30) per day, or more, in the discretion of the court imposing the
sentence.” (Italics added.)
       The monetary credit “must be applied ‘on a proportional basis’ [citation]. In other
words, each dollar of monetary credit must be used proportionally to reduce the base fine,
penalty assessments and restitution fine rather than any one of these categories alone.
Thus, if the monetary credit does not eliminate all amounts due, the defendant still owes
the remaining amount in each category.” (People v. McGarry (2002) 96 Cal.App.4th
644, 646, fn. omitted (McGarry).) In McGarry, this court explained the arithmetic
necessary to calculate a proportionate reduction in the base fine, penalty assessments, and
restitution fine that had been imposed on the defendant in the case before it. (See id. at
pp. 648-650.)
       Here, the trial court imposed a $240 restitution fine (§ 1202.4), a $240 probation
revocation restitution fine (§ 1202.44), a $50 criminal laboratory fee plus penalty
assessments for a total of $200 (Health & Saf. Code, § 11372.5), and a $150 drug
program fee plus penalty assessments for a total of $600 (Health & Saf. Code,
§ 11372.7), all of which the parties agree qualify for proportional reduction.

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Accordingly, this case must be remanded with directions that the trial court use
defendant’s excess credits to reduce these fines, fees, and associated penalty assessments
proportionally as required by section 2900.5, using the methodology set forth McGarry,
supra, 96 Cal.App.4th at pages 648-650.
                                      DISPOSITION
       The judgment is remanded to the trial court with directions to award defendant an
additional three days’ credit (one day pretrial custody credit and two days’ conduct
credit) and allocate a $90 monetary credit to the restitution fine, restitution revocation
fine, drug lab fee, drug program fee, and all associated penalty assessments
proportionally in compliance with section 2900.5.
       In all other respects, the judgment is affirmed.



                                                          MURRAY               , J.



We concur:



      BLEASE                 , Acting P. J.



      HULL                   , J.




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