Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025177
RAYE, J.After pleading no contest to vehicle theft (Veh. Code, § 10851, subd. (a)), defendant Andre Wayne Demar Law was placed on formal probation for three years. The trial court imposed numerous conditions of probation and imposed various fees and fines, including a restitution fine of $200. The court revoked defendant’s probation after he violated it and sentenced him to two years in state prison. At the time of sentencing, defendant was again ordered to pay a $200 restitution fine.
On appeal, defendant contends the trial court erred in failing to reflect in the abstract of judgment that the restitution fine imposed at sentencing “was previously imposed” when probation was granted. We agree.
Penal Code section 1202.4, subdivision (b) requires the imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820 (Chambers).) Thus, imposition of a second, duplicate restitution fine upon revocation of probation is unauthorized and must be stricken, notwithstanding the absence of an objection at sentencing. (Id. at pp. 821-823; People v. Arata (2004) 118 Cal.App.4th 195, 201-203.)
All further statutory references are to the Penal Code unless otherwise indicated.
The alleged error in this case is not as clear as it was in Chambers, where the trial court plainly ordered two separate restitution fines. (Chambers, supra, 65 Cal.App.4th at p. 821.) Here, the amount of the restitution fine imposed in 2007 ($200) was identical to the amount previously imposed when probation was granted in 2006. There was no indication that defendant had paid anything on the previous fine, which would make the $200 amount correct; the oral pronouncement of the fine at the sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects only one $200 restitution fine under section 1202.4. Thus, it is unclear whether the trial court improperly imposed a second fine, although we observe that we generally indulge in the presumption that the trial court was aware of, and properly applied, the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
On the other hand, the abstract of judgment does not specify that the $200 restitution fine was imposed when probation was granted on September 13, 2006, rather than when defendant was sentenced to prison on August 8, 2007. Accordingly, we agree with defendant that the abstract of judgment should be modified to clarify that the restitution fine was imposed on September 13, 2006. If this modification reflects the trial court’s intention at the sentencing hearing on August 8, 2007, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, then modification of the abstract of judgment would be warranted to repair the unauthorized sentence. In either factual scenario, the abstract of judgment should be amended.
DISPOSITION
The trial court is directed to amend the abstract of judgment to specify that the $200 restitution fine (§ 1202.4, subd. (b)) was imposed on September 13, 2006. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.