People v. Gutierrez

Full title: THE PEOPLE, Plaintiff and Respondent, v. JESUS GUTIERREZ, Defendant and…

Court: California Court of Appeals, Second District, First Division

Date published: Feb 27, 2008

No. B198819 (Cal. Ct. App. Feb. 27, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. JESUS GUTIERREZ, Defendant and Appellant. B198819 California Court of Appeal, Second District, First Division February 27, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge, Los Angeles County Super. Ct. No. NA068545

Marilee Marshall, under appointment by the Court of Appeal, and Marilee Marshall & Associates, Inc., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.

MALLANO, Acting P. J.

On January 3, 2006, Jesus Gutierrez entered a negotiated plea of no contest to possession of a firearm by a previously convicted felon. Execution of a high term sentence of three years was suspended and defendant was placed on probation under certain terms and conditions, including that he pay a $200 restitution fine under Penal Code section 1202.4, subdivision (b). On March 7, 2007, defendant admitted being in violation of probation and probation was revoked. The previously suspended sentence was reinstated, and defendant was ordered to pay a $600 restitution fine under Penal Code section 1202.4, subdivision (b), and a $600 parole revocation fine under Penal Code section 1202.45.

Defendant contends, and the Attorney General aptly concedes, that it was improper to increase the restitution fine. (People v. Arata (2004) 118 Cal.App.4th 195, 202; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) And, under Penal Code section 1202.45, a parole revocation fine must be in the same amount as the restitution fine. Accordingly, we will order that these fines be modified.

DISPOSITION

The trial court is ordered to modify the judgment to reflect a restitution fine of $200 under Penal Code section 1202.4, subdivision (b), and a parole revocation fine of $200 under Penal Code section 1202.45, and to forward a copy of the modified judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

We concur: VOGEL, J., ROTHSCHILD, J.