Filed 11/18/13 P. v. Ledee CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038939
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. Nos. F19597, F19977)

         v.

LAWRENCE LEDEE,

         Defendant and Appellant.


         Defendant Lawrence Ledee pleaded guilty in case No. F19597 (forgery case) to a
count of forgery (Pen. Code, § 470, subd. (d))1 and admitted service of three prior prison
terms (§ 667.5, subd. (b)). In case No. F19977 (domestic violence case), he pleaded no
contest to a count of corporal injury to a spouse (§ 273.5, subd. (a)) and admitted
allegations of a prior serious felony conviction (§ 667, subd. (a)(1)) and service of a prior
prison term (§ 667.5, subd. (b)). The trial court imposed and suspended execution of
sentence in both cases and placed defendant on felony probation. In July 2012, the trial
court found defendant in violation of his probation, revoked probation, and sentenced him
to a term of 14 years in prison.
         On appeal, defendant argues that the trial court abused its discretion in revoking
his probation. He further contends that the trial court erred in imposing increased
restitution fines after it revoked his probation and sentenced him to prison. We find no
error in the revocation of probation but conclude that the original restitution fines
         1
             All further unspecified statutory references are to the Penal Code.
imposed by the trial court survived the revocation of probation. We therefore modify the
judgments by striking the increased restitution fines, and as modified, affirm.
                       FACTUAL AND PROCEDURAL BACKGROUND
       The underlying facts of defendant’s offenses are not relevant to the issues raised
on appeal. It is sufficient to state that defendant entered into a negotiated plea in two
separate cases. In the forgery case, defendant pleaded guilty to a count of forgery (§ 470,
subd. (d)) and service of three prior prison terms (§ 667.5, subd. (b)). In the domestic
violence case, defendant pleaded no contest to a count of corporal injury to a spouse (§
273.5, subd. (a)) and admitted allegations of a prior serious felony conviction (§ 667,
subd. (a)) and service of a prior prison term (§ 667.5, subd. (b)). The trial court
sentenced defendant to a total of 14 years in prison for the two cases on January 11, 2011,
suspended execution of the sentence, and placed defendant on probation for a period of
eight years. In the forgery case, the trial court imposed a $200 restitution fine under
section 1202.4, subdivision (b)(1) and a $200 probation revocation restitution fine under
section 1202.44 that was stayed pending successful completion of probation. In the
domestic violence case, the trial court imposed a $400 restitution fine under section
1202.4, subdivision (b)(1) and a $400 probation revocation restitution fine under section
1202.44 that was also stayed pending successful completion of probation. As a condition
of his probation, defendant was ordered to complete a two-year drug rehabilitation
program at Delancey Street.
       Defendant started the Delancey Street program in January 2011 but left the
program several days later. He initially told his probation officer that the program had
asked him to leave. However, program officials asserted that defendant had left of his
own will without telling staff about his departure. Delancey Street readmitted defendant,
but expelled him shortly after because he was “dishonest” with program staff. In March
2011 defendant admitted he violated his probation by leaving the Delancey Street

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program. The court reinstated defendant’s probation and ordered him to complete a two-
year residential program. Defendant was accepted into City Team Ministries (City
Team), a 12-month program for those with substance abuse problems that can extend
beyond 12 months for excelling and committed participants. As a condition of his
probation, defendant was ordered to complete a two-year program at City Team and to
“not discontinue [the program] without consent of the probation officer and/or program
directors.” Defendant began the City Team program in June 2011.
       On May 31, 2012, defendant’s probation was summarily revoked as he had been
terminated from the City Team program. After a hearing, the trial court found defendant
in violation of his probation and revoked his probation on July 6, 2012. The trial court
then executed the previously suspended sentence of 14 years and imposed restitution
fines under section 1202.4 in the amount of $1,200 for the forgery case and $2,800 for
the domestic violence case. The trial court also imposed matching parole revocation
restitution fines of $1,200 for the forgery case and $2,800 for the domestic violence case
under section 1202.45.
                                         DISCUSSION
       On appeal, defendant argues that the trial court abused its discretion when it
revoked his probation. He further contends that the court erred in imposing restitution
fines greater than the amounts that were originally imposed.
       Revocation of Probation
       Section 1203.2, subdivision (a), authorizes the trial court to revoke probation after
proper notice and a hearing “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

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offenses.” Once a court had determined that a violation of probation has occurred, it
must “decide whether under all of the circumstances the violation of probation warrants
revocation.” (People v. Avery (1986) 179 Cal.App.3d 1198, 1204.)
       The trial court is vested with broad discretion in determining whether to reinstate
probation following revocation of probation (People v. Jones (1990) 224 Cal.App.3d
1309, 1315), and the trial court’s decision to revoke probation is reviewed for an abuse of
discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v.
Downey (2000) 82 Cal.App.4th 899, 909-910.) “ ‘[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. . . .’ ” (Rodriguez, supra, at p. 443.) However, “the facts
supporting a revocation of probation must be proven by a preponderance of the
evidence.” (Id. at p. 439.) Also, “the evidence must support a conclusion [that] the
probationer’s conduct constituted a willful violation of the terms and conditions of
probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982; People v. Zaring (1992)
8 Cal.App.4th 362, 378-379.)
       One of defendant’s probation conditions stated that he was to complete a two-year
program at City Team. Defendant was only at City Team for approximately one year.
According to testimony by a case manager from City Team, his stay was terminated
toward the end of May 2012 due to his violation of the program’s rules. Therefore,
sufficient evidence supported the conclusion that defendant violated the express
probation condition to complete a two-year program at City Team.
       Nonetheless, defendant argues that his failure to complete a two-year program at
City Team was “unavoidable” because City Team does not offer a two-year program. He
therefore contends that the trial court abused its discretion by revoking probation because
his violation of the condition that he complete a two-year program at City Team was not



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willful. Defendant also maintains that he had graduated from the program by the time he
was terminated, and that “he went on to successfully complete what was asked of him.”
       Although it is true that defendant had completed the minimum requirements to
graduate from the program by the time he was asked to leave, it was his behavior during
the program that ended his stay at City Team. Defendant asserted at the hearing that he
had left the program based on a mutual agreement with the case manager. However, this
contradicts the testimony of the case manager from City Team who testified at the
revocation hearing about the circumstances of defendant’s termination from the
program.2
       The case manager stated that defendant was brought to the case manager’s office
in late May 2012 to have a discussion about defendant’s placement at City Team. During
this meeting, defendant was told that he had met the minimum requirements to graduate,
but that there was a “lack of effort” on his part. Defendant was then informed that it was
unlikely his stay at City Team was going to be extended. At some point during this
conversation, defendant admitted that he had been using a facility pass to see his
girlfriend. Defendant had acquired this facility pass earlier in the year, after filling out a
form indicating that he was going to use the pass to go to school and to assist in his job
search. Defendant’s use of the facility pass to see his girlfriend was a violation of the




       2
         Defendant argues in his opening brief that he “substantially complied” with the
condition that he participate in a two-year residency program because after his
termination from the City Team program he immediately sought out and entered into a
different residential program. However, defendant was ordered to complete a two-year
program at City Team. We fail to see how defendant could have “substantially
complied” with this requirement by enrolling in a new residential program after he was
terminated from the City Team program.


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program rules, which was brought to the attention of the program director.3 The case
manager testified that City Team subsequently terminated defendant from the program.4
       Defendant’s contention that City Team does not offer a two-year program has
merit. However, the case manager’s testimony during the revocation hearing established
that the program at City Team does not typically end after only 12 months. The case
manager asserted that program participants usually had two to three months left in the
program after meeting the minimum requirements for graduation. He further explained
that individuals that were committed to the program could have their stay extended even
longer and that prior to defendant’s participation in the program it was discussed that he
would stay longer than usual, for approximately 18 months. Therefore, despite his
arguments to the contrary, defendant was terminated from the program after only one
year because he failed to abide by the program rules, not because he successfully
completed the program and was forced to leave as he had exceeded the program length.
There is no basis to conclude that defendant’s termination from the program was not “the
result of irresponsibility, contumacious behavior or disrespect for the orders and
expectations of the court.” (People v. Zaring, supra, 8 Cal.App.4th at p. 379.) His
behavior during the program, including his adherence to the program rules, was certainly




       3
          Defendant did offer some contrary testimony during the hearing, asserting that he
had enrolled in school and that he used the facility pass to visit his girlfriend only a few
times.
        4
          Defendant argues in his reply brief that the People inaccurately asserted that he
was “expelled” from the City Team program, when he in fact graduated from the
program after 12 months. While the evidence establishes that defendant met the
minimum requirements and graduated, the case manager from City Team expressly
testified during the hearing that participants typically stay at the program for two or three
months after meeting the minimum requirements for graduation, and that defendant was
“terminated” from the program after staff members became aware of his rule violation.


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within his control. The trial court therefore did not abuse its discretion when it revoked
his probation as his violation of the condition was willful.
       Lastly, defendant insists that violating City Team’s rules was not in itself a
violation of his probation. He contends that when the trial court initially sentenced him
in January 2011, it only informed him that “any violation of the law at the misdemeanor
or felony level” would be a violation of his probation. However we need not address this
argument, as we already conclude that sufficient evidence supported the trial court’s
determination that defendant willfully violated his probation condition to complete a two-
year program at City Team.
       The Restitution Fines
       Defendant contends that the trial court erred when it imposed increased restitution
fines under section 1202.4. During the original sentencing hearing, the trial court
imposed restitution fines of $200 for the forgery case and $400 for the domestic violence
case. Upon revocation of probation, the trial court imposed restitution fines of $1,200 for
the forgery case and $2,800 for the domestic violence case. The People concede the trial
court erred in imposing the increased restitution fines. We find this concession
appropriate, as the original restitution fines imposed “remain[] in force despite the
revocation of probation.” (People v. Chambers (1998) 65 Cal.App.4th 819, 823.)
Furthermore, because the parole revocation restitution fines cannot exceed the restitution
fines, the parole revocation restitution fines must be reduced to $200 for the forgery case
and $400 for the domestic violence case. (§ 1202.45; People v. Johnson (2003) 114
Cal.App.4th 284, 306-308.)
       Additionally, when the trial court originally placed defendant on probation, it
imposed probation revocation restitution fines of $200 for the forgery case and $400 for
the domestic violence case under section 1202.44. The stay on these probation



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revocation restitution fines must be lifted. (People v. Guiffre (2008) 167 Cal.App.4th
430, 435-436.)
                                      DISPOSITION
       The judgment in case No. F19597 is modified by striking the $1,200 restitution
fine imposed by the trial court when the court sentenced defendant to state prison. The
$200 restitution fine remains in force. Thus, the judgment is modified to reflect only the
$200 fine originally imposed in this case. In addition, the judgment is modified to reflect
a $200 parole revocation restitution fine, which is suspended until parole is revoked.
(Pen. Code, § 1202.45.) The judgment is further modified to reflect that a $200 probation
revocation restitution fine (Pen. Code, §1202.44) is now due.
       The judgment in case No. F19977 is modified by striking the $2,800 restitution
fine imposed by the trial court when the court sentenced defendant to state prison. The
$400 restitution fine remains in force. Thus, the judgment is modified to reflect only the
$400 fine originally imposed in this case. In addition, the judgment is modified to reflect
a $400 parole revocation restitution fine, which is suspended until parole is revoked.
(Pen. Code, § 1202.45.) The judgment is further modified to reflect that a $400 probation
revocation restitution fine (Pen. Code, § 1202.44) is now due.
       As modified, the judgment in each case is affirmed. The trial court shall prepare
amended abstracts of judgments and forward certified copies to the California
Department of Corrections and Rehabilitation.




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                        Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




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