Filed 8/27/13 P. v. Dawson CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B243679

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA304386)
         v.

DURAND LANCE DAWSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Abzug, Judge. Affirmed.


         Jessica C. Butterick, under appointment by the Court of Appeal, for Defendant
and Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Durand Lance Dawson, appeals from the judgment
entered following revocation of probation previously granted following his pleas of no
contest to felony theft from an elder or dependent adult (Pen. Code, § 368, subd. (d)) and
the misdemeanor of contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)).
The trial court sentenced Dawson to four years in prison and ordered him to pay a total of
$35,356.49 in restitution to the victims (Pen. Code, § 1202.4, subd. (f)). We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.1
       Dawson “utiliz[ed] a fraudulent contractor’s license [to make] financial
agreements with the victims for construction and remodeling work to be done at [various]
properties.” In some cases he acted with a co-conspirator, Terrance Green, while in
others he acted alone. In one instance, on January 12, 2004, Dawson entered into a
contract with Sharon and Selton Johnson. He was to remove and replace windows for a
fee of $14,865. “During the course of the work, which started after the agreed [upon]
date, . . . Dawson accepted a $5,000.00 down payment, [then] failed to complete the
work . . . .” A later inspection of the work Dawson had performed indicated he had not
installed the type of windows contracted for.
       Sometime between March 31, 2004 and June 19, 2004, Dawson entered into a
contract with Sharon and Donald Norfleet. He had again agreed to remove and replace
windows as well as do some exterior painting for a fee of $9,300. After accepting a
down payment of $4,000, an amount in excess of the 10 percent prescribed by law,
Dawson began work a month after he had promised to start. He painted the exterior of
the home then, at the end of June, after receiving an additional payment of $4,300,
“abandon[ed] the job” leaving debris around the house and failing to replace the
windows. In addition, Dawson apparently did a “poor paint job.”
       On July 15, 2004, Dawson entered into a contract with 72-year-old Betty Austin to
“build a garage conversion and [perform] other construction for [a fee of] $20,400.00.”

1
       The facts have been taken from the probation reports.

                                            2
Austin paid Dawson $14,000 in cash and signed over ownership of a Ford truck valued at
$3,000, an amount far in excess of the 10 percent down payment prescribed by law.
Although Dawson performed some work, it was unsatisfactory. Austin “had to pay
additional monies [to have redone] plumbing and electrical work . . . [Dawson had] left
unfinished.”
       When contacted in 2006, Austin indicated Dawson’s actions had cost her “both
financially and emotionally.” After paying Dawson $17,000, she “had to pay to have the
plumbing and electricity restored in [her] garage.” In addition, “[a]n appraiser . . .
informed her . . . the value of her home ha[d] been substantially reduced based” on the
condition in which Dawson had left it. Austin had to have debris removed from her yard
and to replace the garage door. She also needs to have the electric garage door opener,
which Dawson removed, replaced in addition to the plumbing and electrical work.
“[B]ased on her age and circumstances, [Austin] is unsure [whether] she will ever be able
to return the home to [its] original condition,” much less have the work done which she
had anticipated Dawson would perform.
       2. Procedural history.
       On June 16, 2006, a felony complaint was filed charging Dawson in counts 1, 3
and 5 with diversion of construction funds, a felony in violation of Penal Code section
484b. In counts 2 and 4 Dawson was charged with grand theft of personal property, a
felony in violation of Penal Code section 487, subdivision (a). In count 6 Dawson was
charged with theft from an elder or dependent adult, a felony in violation of Penal Code
section 368, subdivision (d). Dawson was charged in count 7 with the fraudulent use of a
license number, a felony in violation of Business and Professions Code section 7027.3,
and in count 8 he was charged with conspiracy to commit a crime, a felony in violation of
Penal Code section 182, subdivision (a)(1). In counts 9 and 10, he was charged with
accepting an excessive down payment in contract, a misdemeanor in violation of
Business and Professions Code section 7159, subdivision (d) and in counts 11 and 12 he
was charged with contracting without a license, a misdemeanor in violation of Business
and Professions Code section 7028, subdivision (a).

                                              3
       At proceedings held on April 24, 2007, the prosecutor indicated a disposition had
been reached in the matter. The district attorney stated Dawson had brought in
approximately $4,000 in restitution that morning “pursuant to an earlier agreement.” It
was, however, not all of the restitution and the prosecutor indicated the remaining
restitution would be “handled through the Probation Department.” The prosecutor
continued, “Mr. Dawson is going to go ahead and plead to . . . counts 6 and 11[, theft
from an elder or dependent adult and contracting without a license]. [¶] There are going
to be five years of formal probation [which is to include] 150 days in the county jail.”
The district attorney then indicated, instead of serving the time in jail, “home detention”
with electronic monitoring would be acceptable.
       Dawson waived his right to a jury or court trial, his right to a preliminary hearing,
the right to use of the court’s subpoena power to compel witnesses to come to court to
testify on his behalf, his right to cross-examine the witnesses who had been called to
testify against him and his right against self-incrimination. The prosecutor explained to
Dawson that, with regard to counts 6 and 11, he faced four years and six months in state
prison and, if all the charges were to be combined, he would be subject to eight years in
prison with regard to the felonies and one and one-half years for the misdemeanors, for a
total of nine and one-half years of incarceration. The prosecutor then indicated that,
should Dawson violate any of the terms of his probation, the trial court had the power to
sentence him to prison. After service of his prison term, he would be placed on parole.
Should he then violate a term of parole, the trial court could again sentence him to prison.
Finally, the prosecutor stated that, “as a result of the plea[,] there [was] going to be a
restitution order.” With regard to Teresa Jones, Dawson was to pay restitution in the
amount of $4,545.76. As to Betty Austin, Dawson was to pay $19,400. With regard to
Sharon Johnson, Dawson was to pay $4,511.55 and for the harm inflicted on Donald and
Sharon Norfleet, he was to pay restitution in the amount of $7,489.18.
       After indicating he understood the terms of the plea, including the payment of
restitution to each of the victims, Dawson pled no contest to felony theft from an elder or
dependent adult in violation of Penal Code section 368, subdivision (d) and the

                                               4
misdemeanor of contracting without a license in violation of Business and Professions
Code section 7028, subdivision (a). The trial court found the plea to have been
“knowingly, intelligently, and voluntarily made[,] . . . accept[ed] the . . . plea and [found
Dawson] guilty based on [the] plea.”
       The prosecutor and defense counsel waived time for sentencing and the trial court,
“[p]ursuant to the plea agreement,” suspended imposition of sentence and granted
Dawson probation for five years. Among the conditions of his probation, Dawson was to
“serve 150 days in the county jail,” the time to be served pursuant to “electronic
monitoring or home detention,”2 and “make restitution to the victims in an amount and
manner described by the probation officer.” Dawson was to report to the Probation
Department within 48 hours of sentencing to set up a plan under which he would pay
restitution in the amounts previously stipulated to. Although payment of restitution to the
victims was to take precedence over all other costs and fees, Dawson was also ordered to
pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $20 court security fee (Pen.
Code, § 1465.8, subd. (a)(1)), a stayed $200 probation revocation restitution fine (Pen.
Code, § 1202.44) and $125 in attorney fees (Pen. Code, § 987.8). Before ending the
proceedings, the trial court dismissed the remaining counts and allegations.
       At proceedings held on August 28, 2008, the trial court informed Dawson he had
“a right to have a formal probation violation hearing.” Dawson, however, indicated he
was willing to give up that right and admit he was in violation of the terms of his
probation based on allegations made in a June 15, 2008 police report. Based on
Dawson’s admission, the trial court revoked, then reinstated his probation. The court
indicated Dawson’s probation was to be continued “on the same terms and conditions” as
previously imposed, but with the following modification: Dawson was to “enroll [in] and
complete a 52[-]week domestic violence counseling program.” In addition, Dawson was
to report to his probation officer within 48 hours of the hearing, then return to court on


2
       The trial court gave Dawson presentence custody credit for 24 days previously
served.

                                              5
November 18, 2008 “for proof of progress on the restitution and proof of progress on his
domestic violence program obligation.”
       Although his counsel made an appearance, Dawson was not present at proceedings
held on November 18, 2008. The district attorney indicated he believed Dawson might
be in custody on another matter and, if that were the case, the prosecutor would “just
request he be ordered out” for a hearing which could be held on November 24. The trial
court agreed with the prosecutor’s assessment of the situation and, although the court
revoked Dawson’s probation, it ordered that a bench warrant for his arrest be held until
November 24, 2008.
       At proceedings held on November 24, 2008, it was determined Dawson, who was
present with his counsel, had an open case in Torrance. The trial court ordered this
matter to “trail [the] open case” and continued it until December 5, 2008.
       On December 5, 2008, defense counsel informed the court Dawson, who was
present at the proceedings, was out of custody. The trial court then informed the parties
that “a probation violation from downtown” had been filed. The court continued, “[T]he
problem I have [is] I remanded him to custody last time on . . . $55,000 bail. He bonded
out. And he’s here today. . . . [I]t concerns the court [because] this is a . . . felony
probation violation.” The prosecutor then informed the court he had received “a call
from the Deputy D.A. in consumer protection who prosecuted Mr. Dawson [in the
Torrance matter].” The prosecutor indicated the case had involved the writing and
cashing of forged checks for large amounts of money while Dawson was still on
probation for theft. After the trial court indicated it intended to revoke probation in the
present case, the parties discussed the matter of “custody status.” Dawson’s counsel
argued Dawson, who had posted bail, had nevertheless appeared before a court where a
violation was pending. Counsel stated, “Mr. Dawson is here. He’s here on time. And
I’m asking [the] court to allow him to remain in his current status. . . . I don’t see what
the change [in] circumstances are. He’s entitled to bail out.”
       After revoking Dawson’s probation in the present matter, the trial court indicated
defense counsel’s point regarding a change in circumstances as to Dawson’s custody

                                               6
status had been “well taken.” The court did, however, indicate it wished to resolve this
new matter from downtown as quickly as possible and if a resolution could not be
reached at the next hearing, the court would set it for a preliminary hearing. The trial
court then released Dawson on his own recognizance and ordered he “not . . . possess any
[blank] checks.” After ordering a pre-plea report from the Probation Department, the
trial court ordered Dawson to return to court on December 29, 2008 without further
notice.
          At a hearing held on March 19, 2009, the trial court dismissed the “open case”
brought by the Los Angeles District Attorney “due to delay.” The prosecutor had failed
to timely bring the action before the court. On April 16, 2009, Dawson’s Torrance matter
was dismissed. At proceedings held on that day, the trial court continued the present
matter to June 11, 2009 “for further proof of progress on probation.”
          At a hearing held on June 11, 2009, the trial court held a discussion with counsel
off the record, then reinstated probation with the “same terms and conditions” as
previously ordered. The court continued, “The People do reserve the right to conduct an
in-lieu-of probation violation hearing based on the Torrance incident. [¶] At this time,
though, I want [Dawson] to continue with his domestic violence counseling and paying
victim restitution and then come back to court for proof of progress on both of those on
September 21, 2009. [¶] And if there’s something that happens sooner where the People
want [Dawson] to come in earlier, they will notify the court and counsel.”
          Several hearings were held during the remainder of 2009 and 2010. At each
proceeding, Dawson was ordered to provide “proof of progress” with regard to the
conditions of his probation. At one hearing, he was ordered to provide “a statement of
assets.” At another, the trial court ordered him to provide “proof of progress in the
domestic violence counseling program.”
          Dawson failed to appear at a hearing held on February 7, 2011. After the
prosecutor informed the trial court Dawson’s probation was set to expire on April 24,
2012, the court “revoke[d] probation and toll[ed] it.” At Dawson’s counsel’s request, the
trial court issued a bench warrant in the amount of $75,000, then ordered it held until

                                                7
February 22, 2011 in order to give Dawson the opportunity to voluntarily make an
appearance. After the prosecutor indicated that, on February 7, the court might wish to
set a “formal probation violation hearing,” the court responded, “The possibilities are
endless. Let’s see if he shows up, and then we’ll cross that bridge when we come to it.”
       A hearing was held on February 23, 2011. Dawson appeared with his counsel and
the trial court recalled and quashed the $75,000 bench warrant. The prosecutor then
indicated, although Dawson had completed his obligation to attend counseling, with
regard to the restitution ordered, there were “tens of thousands of dollars still owed to
various victims.” Defense counsel then indicated Dawson was on general relief and had
been throughout the pendency of his probation. He had been receiving only $200 per
month. Counsel argued, under these circumstances, it could not be argued he was not in
compliance with the terms of his probation. The trial court responded: “[T]his is how I
look at it. Number 1, probation is contingent upon satisfying all the probationary
obligations, including restitution. And I will do anything and everything that is within
my power to make sure that the victims in this case are fully compensated, including
extending probation out to the maximum that I can.” The court then indicated, if the
People were to find evidence indicating Dawson had been “willfully evading his
responsibilities to pay restitution” they should place the matter on calendar. In the
meantime, the court reinstated Dawson’s probation and set a hearing for June 23, 2011
for a report as to whether Dawson had made any progress with regard to his obligation to
pay restitution.
       On September 7, 2011, it was determined Dawson had “visited [a] financial
evaluator on August 19, 2011.” As a result of the evaluation, the trial court ordered
Dawson to make restitution payments in the amount of $60 per month. The trial court
then admonished Dawson, indicating if he did not show proof of such payments at the
next proceeding, “the imposition of county jail time [might] result.”
       At a hearing held on April 19, 2012, the trial court summarized the proceedings
indicating that, due to periods when probation had been revoked, it had essentially been
extended for approximately nine months. The court noted Dawson was working for the

                                              8
Clerk’s Office for Los Angeles County and under the current court order was to pay $60
per month toward restitution to the victims. The court indicated it could do one of two
things: (a) “convert the restitution [to a] civil judgment [pursuant to] Penal Code section
1214” or (b) “extend probation nine months, which would put it out . . . to January 23rd,
2013.” After a fairly lengthy discussion between the parties, the trial court decided to
hold a hearing to determine whether Dawson was in violation of the terms of his
probation.
       The prosecutor indicated Dawson was in violation of probation in that he had
failed to pay restitution to the victims, failed “to do a financial evaluation” and failed to
report on April 6, 2012. Under the circumstances, the prosecutor believed “some
additional jail time [was] warranted.” In making these allegations, the prosecutor was
relying primarily on the probation officers’ reports.
       Defense counsel objected, indicating if the prosecutor was going to rely on the
probation reports the defense should be provided with the opportunity to cross-examine
the authors with regard to the authenticity of those reports. The trial court then stated it
was its understanding one did not have the right to confront and cross-examine witnesses
at a probation revocation hearing. The court, however, in the interest of fairness
determined if defense counsel wished to have the probation officers at the hearing, they
“should be [t]here.” Accordingly, the court revoked Dawson’s probation “to toll the
running of the statute,” and set a hearing date for a time which would allow the probation
officers to be present. At the end of the hearing, the court released Dawson on his own
recognizance.
       On July 26, 2012, a hearing was held to determine whether Dawson was in
violation of the terms of his probation. Deputy Probation Officer Doris Icute had been
Dawson’s probation officer until January 2011. When Dawson had reported to Icute on
August 5, 2010, he indicated he was not working at the time. In the same report, Icute
noted she had received a telephone call from one of the victims, Theresa Jones. Jones
indicated she had not received any money in restitution and asked Icute when Dawson’s
next hearing was to be held.

                                               9
       During the two and one-half years she supervised him, Icute prepared five separate
probation reports. In the first report, dated November 2008, she indicated Dawson had
made two restitution payments totaling $200. In Icute’s report from September 2009, she
indicated Dawson had made three restitution payments totaling $300. Dawson, however,
had never made payment directly to Icute. He always told Icute he had mailed the
payments to the Probation Department. Moreover, Icute never saw receipts for the
payments allegedly made and Probation Department records indicated Dawson had made
four, not five, payments.
       Dawson indicated, while he was attending the domestic violence counseling
program, the trial court had ordered him to pay for those sessions before making
additional restitution payments. However Dawson’s assertion is not supported by the
record. Nowhere in the record of prior hearings can it be found the court made such a
comment. The trial court noted the only notation it had found which addressed whether
restitution payments were to be subordinate was in the trial court’s notes of May 10,
2010. There, the court wrote: “[A]ll restitution [is] to be paid to victim restitution prior
to being applied to any other source.”
       Ivory Thomas acted as Dawson’s probation officer from September 2011 to
January 5, 2012. After January 5, Probation Officer Dana Harper took over Dawson’s
case. However, before he passed Dawson’s case on to Hopper, Thomas had scheduled
Dawson for an appointment with a financial evaluator on January 10, 2012. On January
10, Dawson cancelled the appointment “due to job training.” According to Thomas’s
records, the last restitution payment made by Dawson while he was under Thomas’s
supervision was for $20 and had been made on December 14, 2011. At that time,
Dawson had told Thomas he was unemployed but was working with the Department of
Employment in an attempt to find work.
       On April 17, 2008, Dawson underwent a financial evaluation. Pamela Fletcher
had reviewed the report which, in 2008, included as a condition of probation a payment
plan which required Dawson to pay $100 per month toward restitution for the victims.
Dawson had included in his financial evaluation two receipts indicating he was being

                                             10
paid $1,500 per month as an employee of a moving and storage company. It was also
noted he was paying $1,100 per month toward a mortgage. Although Dawson’s ex-wife
actually owned the home, Dawson paid the $1,100 per month to live there with his
children.
       According to the probation reports, Dawson underwent another financial
evaluation in April 2010. As a result of that report, his monthly payment was reduced
from $100 per month to $30 per month. A third financial evaluation was scheduled for
January 10, 2012. However, Dawson cancelled the appointment indicating he was being
trained for a new job and could not take the time off. Fletcher had not heard from
Dawson since that time.3
       Harper was Dawson’s probation officer at the time of the present hearing. She had
been supervising Dawson since March 2011. On March 31, 2011, Harper had a
conversation with Dawson during which she reminded him of his obligation to make
restitution and informed him that he was delinquent in his payments. According to
Harper, Dawson became angry with her and indicated, although he had obtained a
Master’s Degree in Business Administration from the University of Southern California
(USC) the previous year, due to his criminal record he was having difficulty finding a
job.
       Harper and Dawson met again on February 3, 2012. Dawson indicated he had
obtained a position at the Los Angeles County Clerk’s Office and he appeared amenable
to making restitution payments. Harper made arrangements with Dawson to meet again
on April 6, 2012. Pursuant to a court order issued on March 29, 2012, Dawson was to
have another financial evaluation by April 8, 2012. After their February 3rd meeting,
Harper recommended to the court that Dawson’s restitution balance “be committed to a
civil judgment.” Such a recommendation is generally made when an individual is




3
      Although Dawson had met with financial evaluators on two different occasions, he
has missed three other appointments.

                                           11
approaching the end of his or her probationary period and has still not paid a sufficient
amount “to be able to take care of the matter before the [grant of probation] expires.”
       Dawson reported to the Probation Office on April 6 but did not meet with Harper
or her designee and did not make arrangements to have a financial evaluation performed.
Although she was still his designated officer, Harper did not see Dawson after their
February 3rd meeting. At that point, Harper changed her recommendation. It was
Harper’s opinion Dawson was in violation of the terms of his probation in that he had
failed to follow the trial court’s order to have a financial evaluation performed. In
addition, it appeared Dawson had not been making his restitution payments. Dawson
apparently had the ability to show what payments he had made because, according to
Harper, the Treasury Tax Collector’s Office issues a monthly statement indicating what
funds have been collected by the Los Angeles County Probation Department on the
probationer’s behalf. The monthly statement is then mailed to the probationer’s address.
It is, however, imperative that the probationer place on his or her payment the correct
case or account number in order to assure it is credited to the probationer’s account for
the purpose of making restitution payments.
       After Dawson failed to have a financial evaluation performed, Harper
recommended to the court that it extend probation for a minimum of six months “to allow
Mr. Dawson [the] opportunity to make further [restitution] payments.” Harper
recommended the extension in part because Dawson “still owed a very large amount of
money.” According to one record from the Treasury Department, Dawson had paid a
total of only $590 in restitution.
       Dawson testified in his own defense at the July 27, 2012 hearing. He first
indicated that, when he began his service of probation in April 2007, he was ordered to
participate in a “work release program” and to make restitution payments. In May 2007,
Dawson was employed as a marketing manager. However, he lost the job in August
2007. During that time, with the assistance of his mother, Soakey, he made restitution
payments. Dawson mailed the payments and he wrote on each of them either his account
number or his case, or “X” number. When he first began making restitution payments,

                                             12
Dawson had some problems with both the account number and the “X” number.
Different notices indicating he owed a payment had on them different numbers. Dawson
would write on his money order the account number on the notice and it would not
always be credited to his account. However, his first probation officer, Officer Venwan,
traced the payments and they were eventually credited against Dawson’s outstanding
balance.
       In 2009, Dawson was forced to go on general relief. Dawson has more than one
felony conviction and, although he was hired to perform several different jobs, as soon as
the employer found out about his criminal history, he “lost [the] job.” He was,
accordingly, on general relief for approximately two and one-half years and, during that
time he received only $221 per month and $200 per month in food stamps. Dawson was
therefore unable to make regular restitution payments. His payments were sporadic and
of differing amounts. In addition, at times Dawson would mark the payments with the
wrong “X” number.
       Although his probation officer would tell Dawson his restitution payments were
past due, he never received a notice from the Probation Department indicating he was
delinquent in his payments. Instead, he simply received documents indicating how much
he owed. For example, in December 2011, Dawson received a statement indicating he
owed “over 43 thousand dollars.”
       At one point it appeared Dawson had owned a home, which he sold. However it
was later determined the owner was not Dawson, but his father, Durand Dawson, Sr. The
purchaser of the home was Dawson’s ex-wife, Meredith Dawson, and she bought the
house as “her personal property.”
       Dawson recognized that on March 29, 2012, the trial court had ordered him to
report to his probation officer, Dana Harper, or her designee on or before April 8 for a
financial evaluation. Dawson, who was working at the time, was given the day off on
April 6. However, when he went to the Probation Department on that day, neither Harper
nor her designee were in the office. It had not occurred to Dawson to call the Probation
Department to be certain either Harper or her designee would be in that day. He simply

                                            13
presumed that one of the officers would be there. When neither was available, Dawson
spoke to “the officer of the day.” The officer of the day could not perform the necessary
financial evaluation and informed Dawson she would have Harper telephone Dawson the
following week to arrange for one. Dawson, however, never received a phone call. His
probation was subsequently revoked and, after that, Dawson no longer reported to the
Probation Department.
       On cross-examination, the prosecutor questioned Dawson about his “Statement of
Assets.” Dawson had indicated that when he was first placed on probation in 2007, he
was “allowed to go to work, and come home with the . . . bracelet on [his] ankle.” He,
however, lost his job in August 2007. After losing the job, Dawson’s mother helped him
to make some of the restitution payments. Dawson kept track of the payments made by
his mother by retaining copies of receipts indicating she had been the one who had paid
them. Dawson’s mother also helped him pay for the domestic violence program. She
apparently understood his situation and did not expect to be paid back.
       While on probation, Dawson attended a Master’s of Business Administration
program at USC. He indicated he had to complete only 12 units worth of classes to finish
the program, which he did in May 2011. Dawson completed the program to make
himself “more marketable.” In order to attend the classes, Dawson had applied for and
received a $2,700 grant and had, prior to being placed on probation, taken out
approximately $11,000 in student loans from Bank of America. Dawson had repaid
approximately $300 worth of his student loans in the previous two years. However, he
had recently been hired by the bank and, since that time had paid the bank an additional
$75.
       After hearing all of the evidence, the trial court determined Dawson had not been
truthful in the giving of his testimony. The court first indicated Dawson appeared to have
specific motivations to lie and second, none of his testimony was corroborated by any of
the other witnesses. Accordingly, the court found Dawson “in willful violation of the
term[s] and conditions of [his] probation[] [i]n that he failed to comply with the court[‘s]
order [given] on March 29, [to report to Officer Harper or her designee for a financial

                                             14
evaluation] and failed to make good faith efforts to pay back the restitution which
include[d] the responsibility to comply with all court [orders].” The trial court revoked
Dawson’s release on his own recognizance and remanded him to the custody of the
sheriff. The court ordered a presentence probation report and set sentencing for
August 17, 2012.4
       At proceedings held on August 23, 2012, the trial court indicated Dawson, who
was at that time in custody, had originally been charged with “11 counts of fraudulent
activity . . . . [¶] He subsequently entered a plea of no contest to count 6, which . . .
charged him with theft from an elder or dependent adult” and count 11, which charged
him with contracting without a license. The trial court indicated “[t]he history of the
defendant’s performance on probation and the probation revocation proceedings which
brought [Dawson to court that day] for sentencing [were] summarized in a Findings of
Fact and Conclusions of Law [which the] court filed . . . .” The court continued: “In
sum, the court found . . . the defendant willfully violated the conditions of his probation
in two regards: First by failing to report to his probation officer, Dana Harper, or her
design[ee], by April 8th, 2012, so that a financial evaluation could be performed; and
secondly, that he failed to pay restitution to the victims to the best of his ability. The
sentence that I’ll be announcing today is supported independently by either one of these
two violations.”



4
       On July 31, 2012, the trial court filed a document entitled “Findings of Fact and
Conclusions of Law.” After summarizing Dawson’s case, the court indicated: “It is an
unfortunate reality of the criminal justice system that many defendants lack the ability to
financially compensate the victims of their crimes. Since Article 1, Section 10, of the
California Constitution proscribes imprisonment for debt, once the Court is satisfied that
a defendant genuinely lacks the ability to pay restitution, based upon a thorough financial
investigation, it has no choice other than to convert his obligation to a civil judgment. [¶]
This case is distinguished from many, not by the victims’ unsatisfied financial loss, but
by the defendant’s persistent and intransigent refusal to cooperate with an investigation
into his ability to compensate those victims. [¶] Sentencing remains scheduled for
August 17, 2012, to determine whether the defendant should be reinstated on probation or
sentenced to state prison and, if so, the appropriate base term.”

                                              15
       After considering all of the relevant material, including probation reports and the
prosecution’s sentencing memorandum, the trial court indicated it had reached its
“tentative finding . . . because the degree of monetary loss to the victims was substantial
and the defendant was an active participant in the crime[.] [H]aving weighed all of the
relevant factors, [the court] believe[d] that probation should be denied . . . because there
[was] a likelihood . . . the defendant would not succeed on probation.”
       Defense counsel argued Dawson had substantially complied with the terms of his
probation for five years. He generally reported to his probation officers in a timely
fashion and “ha[d] been trying to secure a job for some time.” He has “an extensive
family” which has been supportive and would “like to be able to rejoin” them. Counsel
asserted, given the five years he has spent on probation, it was “unnecessary to sentence
Mr. Dawson to state prison . . . for a financial crime where the primary . . . violation
stems from his failure to make restitution payments.” Defense counsel believed the trial
court’s initial inclination, “to convert the restitution to a civil judgment” was the most
appropriate way to handle Dawson’s case.
       The trial court indicated, in addition to the present crimes, Dawson had suffered
convictions for a number of misdemeanors as well as a 1996 felony conviction for
forgery. In addition, the original probation report in this matter had recommended
Dawson be sentenced to the upper term of four years in prison and urged that he not be
granted probation. Under these circumstances, the trial court indicated, although Dawson
was eligible for reinstatement of probation, “having given the defense a full opportunity
to be heard, and considering all the relevant facts related to the crime and . . . the
defendant, [the court had found] that the degree of monetary loss to the victims in this
case was substantial.” The court determined Dawson “was an active participant in the
crime” and “there [was] a likelihood [he would] not succeed on probation if [it were to
be] reinstated.” The trial court accordingly, denied probation.
       The trial court considered Dawson’s history of criminal and “predatory” behavior,
which began in 1991 with misdemeanor convictions for theft, forgery and attempted
burglary and continued into 2005 when he drove a vehicle without the owner’s consent.

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Based on this record, the court concluded Dawson’s crimes were increasing in
seriousness. The court indicated, on the other hand, although it had combed the record it
had found no “substantial mitigating” factors. Before sentencing Dawson, the trial court
stated, “I have bent over backwards to try to keep Mr. Dawson on probation. I have
given him chance after chance after chance.” The trial court then sentenced Dawson to
the upper term of four years in prison for his conviction of felony theft from an elder or
dependent adult as alleged in count 6. After noting that due to realignment, Dawson
would serve his term in county jail (see Pen. Code, § 1170, subd. (h)(1)), the trial court
awarded him presentence custody credit for 188 days actually served and 188 days of
good time/work time, or a total of 376 days. The court ordered Dawson to pay a total of
$35,356.49 in restitution to the various victims (Pen. Code, § 1202.4, subd. (f)) then
signed orders converting the actual restitution owed to “civil judgment[s].” (Pen. Code,
§ 1214, subd. (b)).
       Dawson filed a timely notice of appeal on August 28, 2012.
                                        CONTENTIONS
       After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
       By notice filed May 31, 2013, the clerk of this court advised Dawson to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received to date.
                                    REVIEW ON APPEAL
       We have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               ALDRICH, J.


We concur:


             CROSKEY, Acting P. J.




             KITCHING, J.




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