IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 21, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
NORMA RENEE HALL, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM030205 & CM033444)
The opinion of the court was delivered by: Mauro , J.
P. v. Hall CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Norma Renee Hall pleaded no contest in one case to grand theft by embezzlement, and in another case to grand theft by embezzlement and willfully filing a false tax return. The trial court sentenced her to five years eight months in prison.
Defendant contends on appeal that (1) the trial court abused its discretion in accepting her plea on the count of willfully filing a false tax return, because there is no factual basis to support the plea; (2) the trial court erred in recommending that she receive drug and alcohol counseling pursuant to Penal Code section 1203.096*fn1 without making the requisite factual findings; and (3) the trial court erred in imposing a $200 probation revocation fine. (§ 1202.44.)
We conclude (1) any error in failing to find a factual basis for the plea of no contest to filing a false tax return was harmless, because the record supports a finding of a factual basis for defendant's plea; (2) defendant forfeited her contention that the trial court failed to make the necessary findings for drug and alcohol counseling, because she did not object at the sentencing hearing; and (3) the $200 probation revocation fine should not have been imposed.
We will direct the trial court to strike the probation revocation fine, and we will affirm the judgment as modified.
Defendant worked as a bookkeeper at the Corlin Paint store in Chico. Between February and December of 2008, she skimmed $6,276.53 from the company's bank deposits. Defendant was charged with embezzlement in case No. CM030205. She was released on her own recognizance pending sentencing, and she was eventually placed on formal probation.
Defendant worked at Champion Christian School as a bookkeeper during her release from custody prior to sentencing. The school principal launched an investigation into the school's financial records, which revealed discrepancies between the income and the bank deposits prepared by defendant, and disclosed that $9,675.77 was missing.
In case No. CM033444, defendant was charged with embezzlement and willfully filing a false tax return. It was further alleged that she committed the offenses while released on her own recognizance.
In two plea agreements, defendant pleaded no contest to grand theft by embezzlement in case No. CM030205, and she pleaded no contest to grand theft by embezzlement, and willfully filing a false tax return, in case No. CM033444. Defendant also admitted that she committed the subsequent offenses while released on her own recognizance. The trial court sentenced defendant to a total term of five years eight months in prison.
Defendant contends that her conviction for filing a false tax return must be overturned because the record contains no factual basis for her plea to this charge as required by section 1192.5. (People v. Holmes (2004) 32 Cal.4th 432, 441-443 (Holmes); People v. Willard (2007) 154 Cal.App.4th 1329, 1334-1335.) We conclude that any error was harmless because the record supports a finding of a factual basis for the plea.
"[I]n order for a court to accept a conditional plea, it must garner information regarding the factual basis for the plea from either defendant or defense counsel to comply with section 1192.5. If the trial court inquires of the defendant regarding the factual basis, the court may develop the factual basis for the plea on the record through its own examination by having the defendant describe the conduct that gave rise to the charge [citation], or question the defendant regarding the factual basis described in the complaint or written plea agreement. [Citations.] If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. [Citation.] Under either approach, a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate. [Citation.]" (Holmes, supra, 32 Cal.4th at p. 436.)
The trial court's finding of a factual basis for the plea is reviewed for an abuse of discretion and, if there is error, it is deemed harmless if the record supports a finding of a factual basis. (Holmes, supra, 32 Cal.4th 432, 442-443.)
In the present case, defense counsel stipulated that the trial court could take the factual basis from the probation report. And the trial court said it found a factual basis from the probation report. But there are no facts in the probation report in case No. CM033444 concerning the false tax return charge. Moreover, although a reference to a complaint containing a factual basis for each essential element of the crime is sufficient to establish the factual basis for the plea (Holmes, supra, 32 Cal.4th at p. 440), in this case the complaint does not set forth facts supporting each element of the crime of willfully filing a false tax return.
Defendant asserts that the appropriate remedy is to remand the matter to the trial court to give the prosecution the opportunity to establish a factual basis for the plea. She contends that if the prosecution is unsuccessful, defendant must be given the opportunity to withdraw her plea. (People v. Willard, supra, 154 Cal.App.4th at pp. 1335-1336.)
The People concede the error but contend that defendant is foreclosed from raising this issue because, as part of her plea agreement, she expressly waived "any direct appeal [she] may have, absent any appeal to sentencing error." A knowing, intelligent and voluntary waiver is permissible and enforceable with respect to errors occurring before the plea, but not to those occurring after such as sentencing errors. (People v. Panizzon (1996) 13 Cal.4th 68, 85; People v. Orozco (2010) 180 Cal.App.4th 1279, 1283-1284.)
We need not determine, however, whether the error was waived by defendant, because the alleged error is harmless. The complaint in case No. CM033444 alleges that defendant filed a false tax return in April 2009, which would encompass taxable income from 2008. The probation report in case No. CM030205 discloses that defendant embezzled money from Corlin Paint between February 2008 and December 2008. Prior to entering her plea, defendant expressly acknowledged that her attorney explained to her the elements the People would have to prove to get a conviction for filing a false tax return. Defendant pleaded no contest to filing a false tax return and admitted that she committed that crime while she was released from custody in another case. The trial court found that defendant understood the nature of the charges, the consequences of the plea, and that the plea was entered into freely and voluntarily. Comments by the prosecutor and the trial court at the sentencing hearing following defendant's plea indicate that the false tax return charge was based on defendant's failure to declare as taxable income the money she embezzled. At the sentencing hearing, the prosecutor argued for a consecutive rather than a concurrent term for the false tax filing count, noting that in filing a false tax return, defendant stole "from every single honest tax-paying citizen in the State of California by not paying her fair share" of taxes. The prosecutor added that it might be a "drop in the ocean" but that defendant "increased the deficit pressures on our State." But the trial court continued to believe a concurrent term was appropriate for filing a false tax return in this context, explaining that it had "never seen a thief pay taxes on their ill-gotten gains" and adding that it's "not [section] 654, I agree, but it's not the kind of thing that we generally do." Defendant and defense counsel did not object to, or dispute, any of these comments, and did not object when the trial court once again found a factual basis for the plea.
Because the record supports a finding of a factual basis for defendant's plea, it is unnecessary to remand the matter to the trial court to permit the prosecutor to establish a factual basis. (Holmes, supra, 32 Cal.4th at pp. 442-443.)
Defendant also contends that the trial court erred in recommending that she receive drug and alcohol counseling pursuant to section 1203.096 without making the requisite factual findings. Defendant forfeited this contention by failing to object in the trial court.
Section 1203.096 states in relevant part: "(a) Upon conviction of any felony in which the defendant is sentenced to state prison and in which the court makes the findings set forth in subdivision (b), a court shall . . . recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned. [¶] (b) The court shall make the recommendation specified in subdivision (a) if it finds that any of the following are true: [¶] (1) That the defendant at the time of the commission of the offense was under the influence of any alcoholic beverages. [¶] (2) That the defendant at the time of the commission of the offense was under the influence of any controlled substance. [¶] (3) That the defendant has a demonstrated history of substance abuse. [¶] (4) That the offense or offenses for which the defendant was convicted are drug related."
When a trial court makes the aforementioned findings, it must make a recommendation to the appropriate authorities that the defendant participate in a substance abuse counseling or education program while in prison. However, there is no requirement that the appropriate authorities heed the recommendation. (People v. Peel (1993) 17 Cal.App.4th 594, 599.)
The People assert that defendant forfeited her contention because she did not object to the recommendation for drug and alcohol counseling in the trial court. We agree. (People v. Stowell (2003) 31 Cal.4th 1107, 1114 ["with certain exceptions, an appellate court will not consider claims of error that could have been -- but were not -- raised in the trial court"]; People v. Peel, supra, 17 Cal.App.4th at p. 600 [a defendant who fails to request findings, or fails to object to the failure to make findings, forfeits the right to raise the issue for the first time on appeal]; People v. Scott (1994) 9 Cal.4th 331, 352-353 [failure to object denies the trial court the opportunity to correct alleged sentencing error].)
Defendant further contends that the trial court erred in imposing a $200 probation revocation fine. We agree that the fine should not have been imposed.
Section 1202.44 provides: "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. . . ." (Italics added.)
According to the legislative history of section 1202.44, the fine initially was to be collected "'upon any violation of probation,'" but the legislation was modified to provide that the fine could be collected only once -- upon revocation of probation. (People v. Taylor (2007) 157 Cal.App.4th 433, 439.)
Defendant asserts, and the People agree, that we must strike the probation revocation restitution fine. They maintain the fine is inapplicable because the crimes defendant committed in case No. CM033444 were completed before the trial court placed her on probation in case No. CM030205. Thus, defendant did not violate probation and cause her probation to be revoked.
The record supports the parties' factual assertion. Defendant was released on her own recognizance and had not been sentenced in case No. CM030205 when she committed the crimes charged in case No. CM033444. According to the complaint in case No. CM033444, defendant willfully filed a false tax return in April 2009, and embezzled money from the Champion Christian School between December 1, 2009 and March 1, 2010. Thereafter, on March 3, 2010, the trial court placed defendant on probation in case No. CM030205 and imposed a $200 probation revocation fine. In June 2010 defendant was charged in case No. CM033444, she pleaded no contest in July, and she was sentenced to prison in September 2010. At the sentencing hearing, the trial court lifted the stay on the $200 probation revocation fine. However, the trial court did not revoke probation. Instead, the trial court found that defendant was "unavailable to continue probation" and the minute order reflects that probation was terminated unsuccessfully.
We agree that a revocation of probation within the meaning of section 1202.44 occurs only when probation is revoked based on the defendant's violation of probation. Accordingly, the $200 probation revocation fine must be stricken.
The trial court is directed to strike the $200 probation revocation fine. As modified, the judgment is affirmed. The trial court is further directed to prepare an amended abstract of judgment and to forward it to the California Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HULL , J.