Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. FSB11433 of San Bernardino County. Jon D. Ferguson, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and James D. Dutton, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant and appellant Michael Daniel Dearth’s sole issue on appeal is that the trial court erred in setting his parole revocation restitution fine at $800 instead of $200. Respondent agrees. We shall modify the order as set forth below.
I
FACTUAL AND PROCEDURAL HISTORY
On July 1, 1996, in case No. FSB11433, the San Bernardino County District Attorney filed a felony complaint charging defendant with commercial burglary under Penal Code section 459 (count 1), and assault with a deadly weapon causing great bodily injury under Penal Code section 245, subdivision (a)(1) (count 2). As to count 1, it was also alleged that defendant used a deadly and dangerous weapon under Penal Code section 12022, subdivision (b).
On July 12, 1996, defendant pleaded guilty to both counts and admitted the enhancement. On November 21, 1996, defendant was given probation and ordered to pay a restitution fine of $200 under Penal Code section 1202.4, which was stayed. Term 19 of defendant’s probation conditions sets forth the payment of the $200 restitution fine. The record shows that Term 19 originally indicated a fine in the amount of $600. However, the $600 fine was changed to a $200 fine with a handwritten “overwrite.”
On October 15, 1997, defendant’s probation was revoked and he was sentenced to the midterm of two years in state prison on count 1, to run concurrently with a two-year sentence on count 2. On the same date, defendant pleaded guilty to being in possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1), in case No. FSB16161, and was sentenced to a midterm of two years in state prison to run concurrently to the two-year term in case No. FSB11433. As part of the sentence in case No. FSB16161, the trial court imposed a $200 parole revocation restitution fine. The trial court also imposed any stayed fine in case No. FSB11433. The October 15, 1997, minute order in case No. FSB11433 states that the court ordered an $800 restitution fine previously stayed. This minute order mistakenly referred to the $200 restitution fine as an $800 fine, imposed at the original sentencing hearing on November 21, 1996, because the “2” written over the “6” could look like an “8.”
On November 16, 2006, the California Department of Corrections and Rehabilitation wrote the court a letter indicating that the court failed to order a Penal Code section 1202.45 parole revocation restitution fine at the time the restitution fine under Penal Code section 1202.4 was imposed.
In response to this letter, on May 24, 2007, the trial court imposed an $800 parole revocation restitution fine under Penal Code section 1202.45 in case No. FSB11433, under the apparent belief that the amount corresponded to the restitution fine amount imposed at the original sentencing.
Defendant appeals.
II
ANALYSIS
Defendant’s sole contention on appeal is that the May 24, 2007, order of an $800 parole revocation restitution fine be modified to $200. Respondent concedes. We agree and will order that the parole revocation restitution fine be reduced to $200.
Under Penal Code section 1202.45, “[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
Here, at the original November 21, 1996, sentencing, the trial court imposed a $200 restitution fine under Penal Code section 1202.4, as Term 19 of defendant’s probation. As set forth above, at the May 24, 2007, hearing, the trial court mistakenly construed the record as indicating that it had imposed an $800 restitution fine on November 21, 1996. A close examination of the November 21, 1996, minute order shows that a “2” was handwritten over a typed “6”—making the “overwrite” look like $800 to some.
Moreover, contrary to defendant’s assertions, the trial court on October 15, 1997, did not impose a $200 restitution fine when it sentenced defendant to prison in this case; the court only imposed such a fine in the other case, case No. FSB16161. At the time of the probation revocation hearing on October 15, 1997, the trial court properly stated that, as to case No. FSB11433, it imposed any stayed fine, which necessarily referred to the imposition of the November 21, 1996, Penal Code section 1202.4, $200 restitution fine.
We are aware that the minute order from the October 15, 1997, hearing indicates that the trial court imposed an $800 restitution fine. However, this is the result of a mistaken interpretation of the November 21, 1996, record, reading $200 as $800.
The Department of Corrections and Rehabilitation was correct when it informed the trial court, by letter, that the court had failed to impose a parole revocation restitution fine under Penal Code section 1202.45, when the court imposed a restitution fine under Penal Code section 1202.4. On May 24, 2007, the trial court correctly stated that it should have imposed a parole revocation restitution fine earlier in the case, in the same amount as the restitution fine. The court, however, mistakenly believed the amount to be $800, instead of the original imposed amount of $200.
Therefore, the May 24, 2007, minute order should be modified to reduce the parole revocation restitution fine from $800 to $200, pursuant to Penal Code section 1202.45.
III
DISPOSITION
The judgment is hereby modified by reducing the parole revocation restitution fine under Penal Code section 1202.45 to $200. The judgment as so modified is affirmed. The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)
We concur: McKINSTER Acting P. J., GAUT J.