Filed 10/3/13 P. v. Castaneda CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. MIGUEL CHRISTOPHER CASTANEDA, Defendant and Appellant. D062947

(Super. Ct. No. SCD229621)

APPEAL from a judgment of the Superi or Court of San Diego County, Frederick Maguire, Judge. Affirmed as modi fied and remanded with directions.

Richard Power for Defenda nt and Appellant, under ap pointment by the Court of Appeal. Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant Attorneys General, Alana Cohen Butler, Jame s D. Dutton, Deputy Attorneys General.2 In October 2012, the court revoked Migu el Christopher Castaneda's probation, sentenced him to 12 years in prison and im posed fines of $2,400 each for restitution (§ 1202.4, subd. (b)) and probation revocation (§ 1202.44), in addition to fines of $200 each for those purposes previously imposed in June 2011. Castaneda contends the trial court abused its discretion in rev oking his probation. He also contends the court improperly impo sed the additional $2,400 fines. The People
concede the trial court erred in imposing those fines, and we agree. We modify the judgment to strike those fines, and otherwise affirm the judgment. FACTUAL AND PROCEDUR AL BACKGROUND In October 2010, the People charged Cast aneda with assaulting Jose Galeanna with a deadly w eapon (Pen. Code, 1 § 245, subd. (a)(1); count 1) dissuading a witness by force or threat (§ 136.1 subd. (c)(1); co unt 2) and making a criminal threat (§ 422; count 3). As to count one, it was alleged Castaneda personally used a deadly weapon (§ 1192.7, subd. (c)(23)) and personally inf licted great bodily injury upon someone who was not an accomplice to the offense (§ 12022.7, subd. (a )). A gang enhancement was alleged as to each count. (§ 186.22.) Jose Galeanna testified at the prelimin ary hearing that in March 2010, Castaneda took a homeless man's fishing pole and hit the man with it. Galeanna criticized Castaneda for that. Castaneda left and retu rned shortly afterwards with two friends. Castaneda hit Galeanna in th e face with a pipe, rendering him unconscious. Galeanna

1 All statutory references are to th e Penal Code unless otherwise stated.3 required surgery for his broken cheek and jaw and chipped teet h, and at trial he still experienced pain from his injuries. In May 2011, Castaneda plea ded guilty to count 1 and admitted the great bodily injury and gang enhancements. The trial c ourt dismissed the rest of the allegations. ( People v. Harvey (1979) 25 Cal.3d 754.) In June 2011, Castaneda was placed on probation on condition he serve 365 days in jail. He also was required to get treatment and therapy as suggested by validated tests, and stop using al cohol and drugs. In February 2012, Castaneda admitted a probation violation; therefore, his probation was revoked. In March 2012 his probation was reinstated. In July 2012, Cast aneda denied allegations that he violated his probation by committing assault. At an October 10, 2012 evid entiary hearing, Castaneda's probation officer testified regarding her dealings with Castaneda after his May 14, 2012 releas e from custody. She reviewed his probation conditions with him. Castaneda un derwent a urinalysis, which returned positive resu lts for methamphetamine. The prob ation officer directed him to enroll into a long-term reside ntial treatment program. He did so for one day then abandoned the program. The probation offi cer attempted to cont act Castaneda by phone and mail to discuss his test results, but r eceived no response. Police informed the probation officer of Castaneda's June 3, 20 12 arrest for being under the influence of a controlled substance. (Health and Saf. Code , § 11550.) Castaneda never complied with4 his probation conditions requiring him to, among other things, in form the probation officer of his arrest and register as a gang member. Castaneda conceded at the hearing that he had violated his probation, but explained he had experienced a rough time af ter he had lost his house and his mother died. He stated he had since obtained $50 to pay the intake fee at a residential treatment facility, which he was willing to enter if the court reinstated his probation. DISCUSSION
I. Castaneda contends the court abused its discretion by revoking his probation instead of placing him in a re sidential treatment program. In reviewing an order revo king probation, we give great deference to the trial court's decision, bearing in mind that "[p]roba tion is not a matter of right but an act of clemency, the granting and re vocation of which are entirely within the sound discretion of the trial court." ( People v. Pinon (1973) 35 Cal.App.3d 120, 123.) "It has long been recognized that the Legislature . . . intended to give trial courts very broad discretion in determining whether a probatione r has violated probation." ( People v. Rodriguez (1990) 51 Cal.3d 437, 443.) "S uch discretion 'implies that in th e absence of positive law or fixed rule the judge is to decide a question by his [or her] view of expediency or of the demand of equity and justice.' " ( Id. at p. 445.) But trial court discretion is not unlimited. " ' " 'The discretion of a trial judge is not a whimsical, uncontrolled power, but a lega l discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on5 appeal where no reasonable basis fo r the action is shown.' " ' " ( People v. Jacobs (2007) 156 Cal.App.4th 728, 737.) Abuse of discreti on has both a factual component and a legal component. ( Ibid .) While the court's discretion is very broad, its determination must be based on the facts before it. ( People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Here, we conclude Castaneda has not made a showing the court abused its discretion in declining to reinst ate him on probation. It was not irrational for the court to withdraw its grant of clemency in light of Castaneda's repeated fa ilure to comply with several probation requirements . On this record, the cour t reasonably found Castaneda's latest pledge to comply with the probation terms unavailing.
II. The People concede, and we agree, the trial court e rroneously imposed additional restitution and parole revoca tion fines under sections 1202.4, subdivi sion (b), and 1202.44. After Castaneda's probation was revoke d, the original fines remained in effect. ( People v. Marichalar (2003) 144 Cal.App.4t h 1331, 1337.) Accordin gly, we strike the additional $2,400 fine s imposed in October 2012; th e $200 fines imposed for those purposes on June 8, 2011, remain in effect.6 DISPOSITION We strike the restitution and parole revoca tion fines for $2,400 each imposed under Penal Code sections 1202.4, subdiv ision (b), and 1202.44, and therefore the original fines of $200 each remain in effect. As so modified, the judgment is affirmed. The matter is remanded and the trial court di rected to amend the abstract of judgment accordingly, and forward a certified copy of th e amended abstract to the Department of Corrections and Rehabilitation.

O'ROURKE, J. WE CONCUR:

McCONNELL, P. J.

AARON, J.