Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F06904517-0. James Petrucelli, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle Newcomb and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Defendant Julia Howell was convicted of second degree robbery and use of tear gas in connection with an incident at a supermarket where she left without paying for groceries and used pepper spray on store personnel who tried to stop her. She obtained a reversal of her conviction, but was found guilty of the same charges in a second jury trial. In this appeal, defendant challenges two aspects of her sentence.
First, defendant contends that changes in the terms of her probation following her successful appeal constituted an increase in punishment that violated her due process rights. Specifically, her community service hours and certain fines were doubled. Also, the term of her probation was extended. Second, defendant contends the probation condition that prohibits her from associating with users and possessors of dangerous drugs is unconstitutionally vague.
The Attorney General argues that defendant forfeited the argument that the doubling of fines and community service hours was error by failing to raise the argument in the trial court. The Attorney General concedes that the probation condition should be modified to include a knowledge component.
We conclude defendant’s fines and community service hours should not have been increased at her resentencing and the probation condition prohibiting her association with users and possessors of dangerous drugs should be limited to people defendant knows unlawfully use or possess dangerous drugs. We will modify the sentence and affirm it as modified.
FACTS AND PROCEEDINGS
The facts of the underlying offenses are not material to this appeal and are not set forth in this opinion. The facts relevant to the first trial and appeal are described in our unpublished opinion in People v. Howell (July 17, 2008, F053080).
After the reversal of defendant’s first conviction, she was recharged with the same offenses and the matter was tried before a jury. In January 2009, the jury found defendant guilty of second degree robbery (Pen. Code, § 211) and unlawful use of tear gas (§ 12403.7, subd. (g)).
In February 2009, the trial court (1) suspended imposition of sentence, (2) granted probation for a three-year term, (3) committed defendant to 365 days in county jail with credit for 120 days and the remaining 245 days suspended, (4) ordered defendant to pay a $400 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and the same amount under section 1202.44 if probation is later revoked, (5) ordered defendant to pay a court security fee of $20, and (6) ordered defendant to perform another 200 hours of community service.
The terms of probation included several conditions, including the following: “Do not use or possess or associate with those who use or possess any dangerous drugs or narcotics. Submit to drug testing.” (Boldface in original.)
Defendant filed a timely notice of appeal in March 2009.
DISCUSSION
I. Doubled Fines
A. Contentions of the Parties
Defendant contends that the condition of probation that doubled the fines from $200 to $400 violated the letter and spirit of People v. Hanson (2000) 23 Cal.4th 355 and North Carolina v. Pearce (1969) 395 U.S. 711, which prohibit the imposition of a more severe punishment as a consequence of successfully appealing a conviction.
The Attorney General argues that the error was not raised in the trial court and, therefore, is forfeited on appeal. Alternatively, the Attorney General asserts that if this court determines no forfeiture occurred, then California’s constitutional prohibition against double jeopardy applies and the matter should be remanded for resentencing.
Defendant addresses the forfeiture argument by acknowledging the principle that where the trial court exercised its discretion in the matter and there was no objection below, the fine may not be changed on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 302.) Defendant argues this principle is inapplicable to her case because the trial court did not have the discretion to impose the doubled fines, and the question raised is purely one of law—that is, it is not dependent upon findings of fact made by the trial court.
B. Analysis
In People v. Tillman, the California Supreme Court stated that the forfeiture doctrine applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. (People v. Tillman, supra, 22 Cal.4th at p. 302.) The California Supreme Court has created an exception to the forfeiture rule for unauthorized sentences or sentences entered in excess of jurisdiction. (People v. Smith (2001) 24 Cal.4th 849, 852.) Under this exception, an appellate court may review an assertion of sentencing error regardless of whether it was raised in the trial court if the sentence could not be imposed lawfully under the circumstances of the case. (Ibid.) In such a case, the error is purely legal in nature and independent of any factual issues. (Ibid.)
The question presented in this case is whether the exception applies to defendant’s argument that the doubling of her fines was error and, thus, allows that argument to be raised on appeal.
The statute clearly states that the restitution fine shall be imposed, establishes a minimum ($200) and a maximum ($10,000) for felonies, and commits the exact amount of the fine to the discretion of the trial court. (Pen. Code, § 1202.4, subd. (b)(1).) The discretion provided by this statute and the principle that sentencing errors involving discretion must be raised in the trial court leads to the conclusion that an objection to the amount of the restitution fine (provided it is within the range authorized by the statute) usually must be raised in the trial court.
The circumstances presented by this case, however, are not the usual situation because defendant’s first conviction and related sentence was reversed, and she was resentenced after being retried and convicted of the same offenses. These facts are similar to those in People v. Hanson, where the court concluded that a trial court could not increase the amount of a restitution fine following a retrial. (People v. Hanson, supra, 23 Cal.4th at p. 362.)
Defendant’s earlier sentence and the principles of double jeopardy established by the California Constitution and recognized in People v. Hanson deprived the trial court in this case of any discretion to impose fines greater than the $200 fines set forth in defendant’s initial sentence. As a result, the sentencing error raised by defendant presents a question of law. The maximum fines allowed under the applicable principles of law were not dependent upon any factual findings made by the trial court. Therefore, the sentencing error may be raised and addressed for the first time on appeal.
We conclude the trial court erred when it increased defendant’s fines to $400. (People v. Hanson, supra, 23 Cal.4th at p. 362.) Those fines should have been $200.
II. Doubled Community Service Hours
A. Contentions of the Parties
Defendant argues that community service hours are punitive in nature and, therefore, a resentencing that increases the number of hours required violates the rule established in People v. Henderson (1963) 60 Cal.2d 482 prohibiting a more severe punishment after a successful appeal of a conviction.
The Attorney General contends the error relating to the community service hours was forfeited, but acknowledges that if forfeiture does not apply, the doubling of defendant’s community service hours should be stricken.
B. Analysis
We conclude that the imposition of community service hours is a punishment for purposes of California’s double jeopardy clause and, therefore, Henderson’s rule against imposing a more severe punishment after a successful appeal operates as a legal barrier to requiring defendant to perform another 200 hours of community service. (People v. Henderson, supra, 60 Cal.2d at p. 497.) This legal barrier deprived the trial court of any discretion to increase the amount of community service hours required when it resentenced defendant. Defendant’s failure to object to the additional hours of community service did not forfeit her right to raise this legal barrier for the first time on appeal. (People v. Smith, supra, 24 Cal.4th at p. 852.)
Consequently, we will modify the sentence so that the total number of hours of community service imposed is limited to the 200 contained in defendant’s initial sentence.
III. Term of Probation
A. Contentions of the Parties
Defendant contends that the trial court erred by extending the period of her probation by one year and 131 days. She argues that all of the factors that the trial court considered were present at the time of sentencing after her first trial and, absent a change in circumstances, the increase in the length of the term of probation must have been a consequence of her successful appeal.
The Attorney General contends defendant forfeited this claim of error by failing to raise it in the trial court. Also, the Attorney General contends that the claim lacks merit because (1) probation is not considered punishment and (2) additional information was available to the trial court at the time of the second sentencing because, among other things, defendant testified at the second trial.
B. Analysis
The California Supreme Court has stated that probation is not punishment but is deemed “an act of clemency in lieu of punishment.…” (People v. Howard (1997) 16 Cal.4th 1081, 1092.) Appellant may be correct, nonetheless, in analogizing the situation here to that considered in People v. Cookson (1991) 54 Cal.3d 1091. There the court held:
“A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation. As [the Supreme Court] held in In re Clark (1959) 51 Cal.2d 838, ‘An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.’ (Id. at p. 840, italics added.)” (Id. at p. 1095.)
In the circumstances presented here, however, we will not decide the issue because we conclude that the claim of error was forfeited by the failure to raise it initially in the trial court. As the record stands, we cannot determine as a matter of law that the trial court extended the term of probation without relying on any information that was not available at the time of the first sentencing. Had defendant raised her objection below, the trial court would have had the opportunity to articulate the reasons for the extension. (People v. Tillman, supra, 22 Cal.4th at p. 302.)
IV. Vagueness of Probation Condition
The condition of probation at issue in this appeal provides: “Do not use or possess or associate with those who use or possess any dangerous drugs or narcotics. Submit to drug testing.” (Boldface omitted.)
A. Contentions of the Parties
The parties agree that the condition must be modified, but it is unclear whether they agree on the extent of the modification needed. The Attorney General admits the condition is unconstitutionally overbroad and “should be modified to provide that [defendant] is not to associate with persons she knows to be unlawful users or possessors of any dangerous drugs or narcotics.”
In her reply brief, defendant contends the modification proposed still leaves open the possibility that a court could find her in violation of probation based on her possessing validly prescribed drugs, or associating with someone who possessed dangerous yet validly prescribed drugs. Defendant contends “the condition should also be modified to include the requirement that the possession be unlawful.”
B. Analysis
In People v. Garcia (1993) 19 Cal.App.4th 97, the appellant asserted that the probation condition that prohibited him from associating with users and sellers of narcotics, felons and ex-felons unconstitutionally impinged upon his right to freedom of association. The appellant contended the condition should have been narrowly drawn and limited to persons known to him as being users or sellers of narcotics or felons or ex-felons. (Id. at p. 102.) The appellate court agreed, stating that the knowledge factor must not be left to implication. (Ibid.)
Based on Garcia and the concessions of the Attorney General, we conclude that the probation condition at issue in this case should be modified to include a knowledge requirement.
With respect to defendant’s argument that the prohibition should extend only to those she knows are unlawful users or unlawful possessors of dangerous drugs or narcotics, we note that the Attorney General’s respondent’s brief could be interpreted to agree with this position. That brief states: “The condition should be modified to provide that [defendant] is not to associate with persons she knows to be unlawful users or possessors of any dangerous drugs or narcotics.” (Italics added.) In this sentence, the drafter may have intended the word “unlawful” to modify both users and possessors. Because it seems anomalous to allow defendant to associate with lawful users and prohibit her from associating with lawful possessors, we will interpret the Attorney General’s statement so that the word “unlawful” applies to both users and possessors and modify the probation condition accordingly.
Defendant also asserts that the qualifier “unlawful” should be applied to her use and her possession of dangerous drugs or narcotics. She makes this contention, however, only in her reply brief. We therefore will not consider it. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30 [appellate court will not consider issue raised for the first time in a reply brief].)
V. Modification or Remand
The sentencing errors in this case can be corrected by this court without remanding for further proceedings in the presence of the defendant. (People v. Smith, supra, 24 Cal.4th at p. 854.) Pursuant to this authority, we will modify the judgment rather than remanding this matter to the trial court for further proceedings.
DISPOSITION
The judgment in this case is modified so that the $400 Penal Code section 1202.4, subdivision (b) restitution fine imposed on February 26, 2009, is reduced to $200 and the $400 section 1202.44 probation revocation fine imposed on February 26, 2009, is reduced to $200.
The judgment also is modified to strike the probation condition that provides: “Do not use or possess or associate with those who use or possess any dangerous drugs or narcotics. Submit to drug testing.” The stricken probation condition shall be replaced by the following: “Do not use or possess, or associate with persons you know unlawfully use or unlawfully possess, any dangerous drugs or narcotics. Submit to drug testing.”
As so modified, the judgment is affirmed.
WE CONCUR: HILL, J. KANE, J.