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People v. Black

July 31, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
IRIS LEE BLACK, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. Affirmed in part; remanded with directions in part. (Super.Ct.No. FMB007466).

The opinion of the court was delivered by: Ramirez P. J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant and appellant Iris Lee Black appeals following revocation and termination of her probation. She contends the trial court erred when it relied on her poor performance on probation to justify imposing an aggravated term of three years for her offense of identity theft. (Pen. Code, § 530.5, subd. (a).)*fn1 Defendant also argues her waiver of conduct credits under section 4019 was not knowing and intelligent, and the court erroneously imposed a $200 restitution fine under section 1202.4, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

Defendant obtained the victim‟s bank account information and used it to make six separate purchases totaling $377.99. Defendant admitted the offense when questioned by police. Pursuant to a written plea agreement, defendant pled guilty on May 18, 2005, to one count of identity theft. (§ 530.5, subd. (a).) On June 15, 2005, defendant was granted three years‟ supervised probation, subject to various terms and conditions, including 90 days in jail.

A petition to revoke defendant‟s probation was filed on July 20, 2006, alleging she failed to report as required for drug testing and no longer lived at her address of record. The court ordered defendant remanded into custody. On August 16, 2006, defendant admitted violating the conditions of her probation. Probation was continued on modified terms, including additional jail time and participation in a drug rehabilitation program.

A second petition to revoke probation was filed July 24, 2007, alleging defendant was no longer living at her residence address and had not reported as required. Defendant admitted the violations, indicated she had relapsed into drug use, wanted to apply for drug court, and hoped to participate in a structured drug rehabilitation program.

The court revoked defendant‟s probation on July 26, 2007. Defendant then applied to participate in a drug court rehabilitation program. She was released from custody to a drug rehabilitation facility on September 24, 2007.

On January 7, 2008, the court reinstated probation on modified terms, including participation in the drug court rehabilitation program and residential treatment as directed by the probation officer. Probation was extended to expire on June 14, 2010. The record indicates defendant participated in the drug court program from January 14, 2008, through May 12, 2008.

On June 2, 2008, the case was referred to the probation office for a supplemental report. The supplemental report indicates the probation department conducted a compliance check of defendant‟s residence on May 23, 2008. The report alleges several violations of the conditions of defendant‟s probation stemming from the compliance check, including possession of methamphetamine and credit cards. The probation officer recommended defendant be sentenced to the middle term of two years in state prison. On June 30, 2008, the trial court held a hearing on the allegations in the supplemental probation report, found the allegations to be true, and sentenced defendant to the aggravated term of three years in state prison.

DISCUSSION

Aggravated Prison Term

Citing rule 4.435(b)(1) of the California Rules of Court, defendant contends the trial court erroneously imposed the aggravated prison term after revoking and terminating her probation. In pertinent part, rule 4.435(b)(1) states as follows: "On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: [¶] . . . [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term." (Italics added.) According to defendant, the circumstances existing at the time probation was granted did not support an aggravated prison term because she had no prior record, and the probation report listed only mitigating and no aggravating factors. Then, at the final ...


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