Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR910595
Lambden, J.
This appeal is taken from the contested revocation of appellant’s probation as authorized by Penal Code section 1237. Appellant’s counsel raises no issues and asks this court for an independent review of the record as requested by People v. Wende (1979) 25 Cal.3d 436. Appellant has not filed a supplemental brief.
BACKGROUND
In September 2006, appellant entered guilty pleas in Lake County Superior Court to one misdemeanor count of driving under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a)) and to one felony count of evading a police officer (Veh. Code, § 2800.2, subd. (a)). Approximately one month later the trial court suspended imposition of sentence and placed appellant on probation for three years. The court imposed standard conditions of probation, including the specification that appellant obey all laws and refrain from consuming alcohol. The court also ordered appellant to pay a restitution fine of $400 pursuant to Penal Code section 1202.4, subdivision (b), and stayed imposition of a $400 probation revocation fine pursuant to Penal Code section 1202.44.
In December 2007, the Lake County probation department filed a petition alleging that appellant had violated his probation by committing three new offenses: felony battery of the mother of his child (Pen. Code, § 243, subd. (e)), felony battery (Pen. Code, § 242), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)). The petition also alleged that appellant had violated probation by consuming alcohol. Shortly thereafter, at the suggestion of defense counsel, the court appointed two experts to evaluate appellant’s competency to stand trial on these new charges. (Pen. Code, §§ 1368 & 1369 respectively.)
Based on the contradictory opinions of the initially appointed experts, trial court appointed a third expert to evaluate appellant’s competency. Ultimately, two of the three experts opined that appellant was competent to stand trial. The trial court deemed appellant competent and reinstated the proceedings against him.
In April 2008, the court heard the contested probation violation petition and found that appellant had violated probation. The evidence presented at the contested hearing described an altercation that occurred on November 2, 2007, at a gas station convenience store in Nice, California. Police responded to a report of a male suspect causing a disturbance inside the convenience store of the gas station. Two officers responded and appellant resisted both officers’ efforts to subdue him. The officers ultimately used a taser gun on appellant in order to restrain him. One of the officers testified that he detected the odor of alcohol emanating from appellant during the arrest.
The officers also contacted Amy Mucci and her father, Bill Mucci, based upon their concurrent report that appellant had been drinking tequila and had become physically abusive towards Amy. Amy and appellant had previously been in a relationship and her father reported to the police that appellant had struck him twice after he attempted to intervene when appellant became physically abusive towards Amy. The deputy taking the report observed that Bill Mucci’s lip was swollen and bleeding. Amy related a similar story regarding the altercation. Both of the Muccis stated that appellant had been drinking tequila.
Appellant stated that he had caused the disturbance at the gas station in order to call out for help to protect himself from people who were chasing him with the intent to harm him. He denied any dispute with either Amy or her father and testified that any physical contact between him and Bill Mucci was a matter of self defense. He also denied resisting arrest.
Appellant admitted drinking enough alcohol to become intoxicated.
Accordingly, the trial court found that appellant had violated the terms of his probation and sentenced him immediately following the conclusion of the probation violation hearing. The court followed the probation department’s recommendation and sentenced appellant to three years in state prison with 461 days credit for time served.
The court imposed a $600 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), and suspended another parole revocation fine of $600 pursuant to Penal Code section 1202.45. Appellant filed a timely notice of appeal. After the appeal was lodged at this court, on October 30, 2008, the trial court issued a new abstract of judgment reducing both the restitution fine and the parole revocation fine mentioned above to $400 in each instance.
DISPOSITION
We have reviewed the entire record and find no arguable issues on appeal. Substantial evidence in the form of two out of three expert opinions supported the trial court’s conclusion that appellant was competent to stand trial. We note that pursuant to People v. Chambers (1998) 65 Cal.App.4th 819, the trial court’s subsequent modification of its judgment to reduce both the restitution fine imposed under Penal Code section 1202.4, subdivision (b), and the stayed parole revocation fine pursuant to Penal Code section 1202.45, makes it unnecessary for us to modify the judgment to reflect that the restitution fine survives revocation of probation and that the imposition of a second restitution fine upon revocation of probation would have been unauthorized.
Accordingly, no issue is presented as to imposition of such fines and the amended judgment is affirmed.
We concur: Kline, P.J. Richman, J.