Filed 4/23/14 P. v. Knapp CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           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.




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       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.



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                                             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.




                                               5
                                              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




                                               6
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




                                              9
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).)


                                              10
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



                                             11
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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