Filed 4/13/15 P. v. Wiese CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
of rule 8.1115.




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D065614

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. SCD243786,
                                                                     SCD245844, SCD251085)
RONALD L. WIESE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Judge

Desiree Bruce-Lyle. Affirmed as modified.



         Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood, Meagan Beale and Paige B. Hazard, Deputy Attorneys General, for

Plaintiff and Respondent.



                                                             1
       In this appeal we are called upon to determine whether the trial court erred in

imposing increased restitution fines (Pen. Code, § 1202.4, subds. (b), (m))1 and a drug

program fee (Health & Saf. Code, § 11372.7) in sentencing the defendant after revocation

of his probation, where a contrary sentence previously imposed was executed but

suspended and stayed during the defendant's probationary period. We answer that

inquiry in the affirmative, strike the increased restitution fines and the drug program fee,

and order that the abstract of judgment be corrected. In all other respects we affirm the

judgment.

                                             I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Appellant Ronald Wiese has a lengthy criminal history resulting from a three-

decade-long addiction to controlled substances. In each of the three cases on appeal,

Wiese entered a guilty plea and was convicted of procuring or possessing drugs, and a

sentence was imposed and its execution was suspended pending Wiese's successful

completion of probation, which included drug treatment. When Wiese failed, his

probation was revoked and he was sentenced to the executed six-year prison term but, as

relevant here, the court increased the amount of restitution fines previously imposed and

imposed a mandatory drug program fee (in case No. SCD245844), which the court had

declined to impose when sentence was pronounced.




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

                                              2
       Wiese argues the court erred when it imposed the executed sentence but increased

the restitution fines and imposed the drug program fee. We agree for the reasons we will

discuss; however we first set forth the relevant facts2 and procedural history of each case

appealed for context.

A.     Case No. SCD243786

       On October 22, 2012, Wiese pled guilty to unlawfully obtaining by subterfuge a

prescription for Percocet, a controlled substance (Health & Saf. Code, § 11173,

subd. (a)).

       On November 20, 2012, imposition of sentence was suspended and the trial court

placed Wiese on felony probation for three years on the condition that he serve 85 days in

custody and pay a $240 restitution fine (§ 1202.4, subd. (b)) and a probation revocation

restitution fine (§ 1202.44) of $240, which was stayed.

       On March 26, 2013, the trial court revoked Wiese's probation due to his new

conviction in case No. SCD245844. The court imposed and executed a stipulated two-

year prison term to run concurrently with that which was imposed on the principal term

selected in case No. SCD245844, but stayed execution of that sentence, and reinstated

and extended Weise's probation until the year 2016 on the previous terms and conditions.

       On January 31, 2014, the trial court formally revoked probation, lifted the stay of

execution, and ordered the two-year executed sentence to be served concurrently with the



2      In discussing the individual cases, we note only the relevant sentencing date, plea
terms and sentence imposed.

                                             3
sentences in cases Nos. SCD251085 and SCD245844. The court also imposed a

restitution fine of $480.

B.     Case No. SCD245844

       On February 26, 2013, Wiese pled guilty to two counts of possession of a

controlled substance (Health & Saf. Code, § 11377, subd. (a)), as on two occasions he

knowingly possessed a usable amount of methamphetamine. He admitted nine prison

priors (§§ 667.5, subd. (b), 668).

       On March 26, 2013, the court sentenced Wiese to a six-year prison term,

suspended execution of sentence and granted probation on the condition that Wiese

immediately serve 365 days in custody, a portion of which could be served in a

residential drug treatment program. It ordered, but stayed unless probation was revoked,

a $2,000 probation revocation restitution fine (§ 1202.44) and an additional restitution

fine of $2,000 pursuant to section 1202.4, subdivision (b). Although the court made no

express finding as to Wiese's inability to pay the drug program fee (Health & Saf. Code,

§ 11372.7) or the lab analysis fee, it specifically ordered that neither fee was imposed.

       On October 3, 2013, Wiese admitted to being in violation of his probation and was

referred to the Parole Re-entry Court program. On November 8, Wiese's probation was

revoked and reinstated, he was accepted in the Parole Re-entry Court program, and he

was ordered to participate in that program as a condition of probation. Ultimately, he

was terminated from the program and his probation was revoked.

       On January 31, 2014, after terminating Wiese from the court drug program, the

court lifted the stay of execution and ordered that Wiese serve the previously imposed

                                             4
six-year prison term to be served concurrently with the sentences executed in cases

Nos. SCD251085 and SCD243786. The court also imposed a restitution fine of $3,360

(§ 1202.4, subd. (b)), a drug program fee of $570 (Health & Saf. Code, § 11372.7) and a

lab analysis fee of $190 (id., § 11372.5).

C.     Case No. SCD251085

       On October 3, 2013, in exchange for a three-year stipulated prison sentence that

was to run concurrently with the sentence imposed in case No. SCD245844, Wiese pled

guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), as

he knowingly possessed a usable amount of methamphetamine on September 25, 2013.

       On November 8, 2013, Wiese was sentenced to the previously stipulated three-

year prison term, which was executed but suspended and stayed for three years pending

successful completion of probation. Wiese was ordered to immediately serve 365 days in

custody, which could be completed in the Parole Re-entry Court program. The trial court

imposed a restitution fine of $280 (§ 1202.4, subd. (b)).

       On January 10, 2014, Wiese's probation was revoked. A review and sentencing

hearing was held January 31, at which time the trial court lifted the stay of execution of

judgment and imposed the stipulated three-year sentence to be served concurrently with

the six-year term in case No. SCD245844.3 The court also imposed a restitution fine of

$840 (§ 1202.4, subd. (b)).



3       The parties agree that the abstract of judgment mistakenly lists the time imposed
for this case as 93 years. We will order the abstract of judgment corrected.

                                             5
                                             II.

                                       DISCUSSION

       This case involves the issue of whether a trial court may modify the terms of an

executed sentence after a defendant's probation is revoked and sentence is executed. The

disposition of the case rests upon the important distinction, in probation cases, between

orders suspending imposition of sentence and orders suspending execution of previously

imposed sentences. The basic distinction is set forth in the Penal Code (§ 1203.2,

subds. (a) & (c)), is implemented by California Rules of Court, rule 4.435 and is

explained in the seminal California Supreme Court case of People v. Howard (1997) 16

Cal.4th 1081 (Howard).

       "When the trial court suspends imposition of sentence, no judgment is then

pending against the probationer, who is subject only to the terms and conditions of

probation." "On the defendant's rearrest and revocation of probation, '. . . the court may,

if the sentence has been suspended, pronounce judgment for any time within the longest

period for which the person might have been sentenced.' (§ 1203.2, subd. (c); see Cal.

Rules of Court, rule 435(b)(1)[4] . . . .)" (Howard, supra, 16 Cal.4th at p. 1087.)

       Significantly, however, " 'if the judgment has been pronounced and the execution

thereof has been suspended, the court may revoke the suspension and order that the

judgment shall be in full force and effect.' " "On revocation of probation, if the court

previously had imposed sentence the sentencing judge must order that exact sentence into


4      Effective January 1, 2001, rule 435 was renumbered as rule 4.435.

                                              6
effect." (Howard, supra, 16 Cal.4th at p. 1088, italics added; see People v. Ramirez

(2008) 159 Cal.App.4th 1412, 1423-1425.)

       With these basic rules in mind, we now turn to Wiese's two appellate claims.

A.     Increased Restitution Fines

       Wiese initially argues the trial court erred by imposing an increased restitution fine

under section 1202.4, subdivision (b) in each of his three cases when his probation was

revoked, suspension and stay of his executed sentence was lifted and execution of the

sentence was ordered. Specifically, he asserts that in case No. SCD243786 the restitution

fine imposed at sentencing was $240, and the trial court improperly increased the fine to

$480 when the sentence was executed; in case No. SCD245844 the restitution fine

imposed at sentencing was $2,000, and the trial court improperly increased the fine to

$3,360 when the sentence was executed; and, finally, in case No. SCD251085 the

restitution fine imposed at sentencing was $280, and the trial court improperly increased

the fine to $840 when the sentence was executed. The People concede this was error, and

we agree.

       A restitution fine imposed at the time of conviction and granting of probation

remains the same despite a future revocation of probation. Therefore, when probation is

revoked, the trial court has no authority to impose a second restitution fine in a greater

amount than the original fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-

823.) Accordingly, we will order that the increased restitution fines in each of

defendant's cases imposed at the time sentence was executed be stricken and the abstract



                                              7
of judgment be corrected to reflect the amount of the restitution fines imposed at

sentencing.

B.     Drug Program Fee

       Citing Howard, Wiese next argues the trial court erred by imposing a drug

program fee under Health and Safety Code section 11372.75 when ordering his sentence

to be executed in case No. SCD245844, because when he was sentenced and judgment

was rendered, the court specifically choose not to impose the drug program fee or a lab

analysis fee.6 Wiese is correct.

       Section 1203.2, subdivision (c) provides in relevant part:

       "[I]f the judgment has been pronounced and the execution thereof has been
       suspended, the court may revoke the suspension and order that the
       judgment shall be in full force and effect."



5       Health and Safety Code section 11372.7 provides in relevant part:
        "(a) Except as otherwise provided in subdivision (b) or (e), each person who is
convicted of a violation of this chapter shall pay a drug program fee in an amount not to
exceed one hundred fifty dollars ($150) for each separate offense. The court shall
increase the total fine, if necessary, to include this increment, which shall be in addition
to any other penalty prescribed by law.
        "(b) The court shall determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee. If the court determines
that the person has the ability to pay, the court may set the amount to be paid and order
the person to pay that sum to the county in a manner that the court believes is reasonable
and compatible with the person's financial ability. In its determination of whether a
person has the ability to pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered to pay in
restitution. If the court determines that the person does not have the ability to pay a drug
program fee, the person shall not be required to pay a drug program fee."

6     While pronouncing sentence the trial court stated, "I will not order the drug
program fee nor the lab analysis fee."

                                             8
California Rule of Court, rule 4.435, subdivision (b)(2), implementing this part of section
1203.2 subdivision (c), states:

       "If the execution of sentence was previously suspended, the judge must
       order that the judgment previously pronounced be in full force and effect
       and that the defendant be committed to the custody of the Secretary of the
       Department of Corrections and Rehabilitation for the term prescribed in
       that judgment."

       These provisions, ''by their terms, limit the court's power in situations in which the

court [chooses] to impose sentence but suspend[s] . . . execution pending a term of

probation." (Howard, supra, 16 Cal.4th at p. 1088 [discussing § 1203.2, subd. (c) and

Cal. Rules of Court, former rule 435, now rule 4.435]; see generally People v. Bolian

(2014) 231 Cal.App.4th 1415, 1420.)7 Our Supreme Court, in explaining its Howard

decision, which discussed the implications of an executed sentence under section 1203.2,

subdivision (c) and rule 4.435, subdivision (b)(2), stated:

       "We explained that '[w]hen the trial court suspends imposition of sentence,
       no judgment is then pending against the probationer, who is subject only to
       the terms and conditions of the probation. [Citations.] The probation order
       is considered to be a final judgment only for the "limited purpose of taking
       an appeal therefrom." [Citation.] On the defendant's rearrest and
       revocation of her probation, ". . . the court may, if the sentence has been
       suspended, pronounce judgment for any time within the longest period for
       which the person might have been sentenced." ' [Citation.] However,
       '[u]nlike the situation in which sentencing itself has been deferred, where a
       sentence has actually been imposed but its execution suspended, "The
       revocation of the suspension of execution of the judgment brings the former
       judgment into full force and effect. . . ." [Citations.]' [Citation.]


7      An exception to the rule exists when an executed sentence is unauthorized. In that
circumstance, the trial court can order execution of the correct sentence whether it is
more or less than the sentence previously imposed. (In re Renfrow (2008) 164
Cal.App.4th 1251, 1253.) In this case, there is no contention the executed sentence,
including the restitution fines and the drug program fee, was unauthorized.

                                              9
       ". . . '[O]n revocation of probation, if the court previously had imposed
       sentence, the sentencing judge must order that exact sentence into
       effect . . . .' " (People v. Scott (2014) 58 Cal.4th 1415, 1423-1424 (Scott).)

       Here, the court imposed sentence on Wiese, including a term that he not pay the

drug program fee, and executed but stayed the sentence during Wiese's probationary

period. The exact sentence, including the drug program fee term, became the judgment

rendered against Wiese and court was without the authority to modify that judgment

when Weise's probation was revoked, and the sentence was executed.

       The People, citing People v. Vega (2005) 130 Cal.App.4th 183 (Vega), argue8 that

the court had the authority to impose the drug program fee because, as a fee not a fine, it

was not part of the punishment imposed on Wiese at the time of sentencing. In essence,

the People argue that the court's order regarding nonpayment of the drug program fee was

not a term of the executed sentence and did not become a part of the judgment. We are

not persuaded.

       "Howard establishes that when a court elects to impose a sentence, a judgment has

been entered and the terms of the sentence have been set even though its execution is

suspended pending a term of probation." (Scott, supra, 58 Cal.4th at p. 1424, italics

added.) Scott clarified that a "sentence includes more than the length of the term of



8       Citing People v. Walker (1991) 54 Cal.3d 1013, overruled by People v. Villalobos
(2012) 54 Cal.4th 177, the People also assert, in passing, that Wiese's drug program fee
claim is forfeited. The argument is not supported legally or factually, is not well
developed, and consequently we will not consider it. (See generally People v. Whalen
(2013) 56 Cal.4th 1, 74 [appellate claim not supported by argument or legal authority is
forfeited].)
                                             10
confinement." (Ibid., citing People v. Garcia (2006) 147 Cal.App.4th 913, 916-917 [sex

offender registration requirement was part of an executed sentence].) Here, the

Legislature specifically required the court to include a term regarding payment (or

nonpayment) of the drug program fee in the sentence for the offense that Wiese was

convicted of, possession of a controlled substance (Health & Saf. Code, § 11377,

subd. (a)). (See Health & Saf. Code, § 11372.7, subds. (a), (b) ["If the court determines

that the person does not have the ability to pay a drug program fee, the person shall not

be required to pay a drug program fee." (Id., subd. (b).) In that respect, Vega, cited by

the People, is not controlling authority as the issue there was whether the laboratory

analysis fee (Health & Saf. Code, § 11372.5) could be imposed on defendants for a

conviction of conspiracy to transport cocaine. (Vega, supra, 130 Cal.App.4th at p. 194.)

Vega is thus neither legally or factually on point.

       Wiese was sentenced once, and the terms of his sentence included nonpayment of

the drug program fee. (Scott, supra, 58 Cal.4th at p. 1423.) The court was required to

impose that exact sentence when Wiese's probation was revoked and his sentence was

executed. The court's failure to do so was error, and we will order the portion of his

sentence regarding payment of a drug program fee in case No. SCD248544 be stricken

and the abstract of judgment corrected.

                                      DISPOSITION

       In case No. SCD243786, the restitution fine of $480 (§ 1202.4, subd. (b)) imposed

when sentence was executed is ordered stricken, and the restitution fine of $240

(§ 1202.4, subd. (b)) ordered at sentencing is reinstated.

                                             11
       In case No. SCD245844, the restitution fine of $3,360 (§ 1202.4, subd. (b)) and

the drug program fee of $570 (Health & Saf. Code, § 11372.7) imposed when sentence

was executed are ordered stricken, and the restitution fine of $2,000 (§ 1202.4, subd. (b))

ordered at sentencing is reinstated.

       In case No. SCD251085, the restitution fine of $840 (§ 1202.4, subd. (b)) imposed

when sentence was executed is ordered stricken, and the restitution fine of $280

(§ 1202.4, subd. (b)) ordered at sentencing is reinstated.

       The superior court is ordered to modify the abstract of judgment to reflect the

reinstated restitution fines in each of the three cases and the deletion of the drug program

fee in case No. SCD245844. The superior court is also ordered to modify the abstract of

judgment in case No. SCD251085 to reflect that the court imposed a three-year prison

sentence, to be served concurrently with the six-year sentence in case No. SCD245844,

not a 93-year sentence. The corrected abstract of judgment shall be forwarded to the

Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



                                                                                   IRION, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.



                                             12
