Opinion
C066466
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. david r. Mclaughlin, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 72004356)
Defendant David R. McLaughlin pleaded no contest in 2007 to inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) and thereby admitted violating his probation in three other cases. In 2007, defendant was placed on five years of felony probation on conditions (among others) that he pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 restitution fine suspended pending successful completion of probation (§ 1202.44), and a $20 court security fee (§ 1465.8).
Undesignated statutory references are to the Penal Code.
On October 5, 2010, after finding defendant had five times violated his probation, the trial court revoked probation and sentenced him to state prison for the midterm of three years. The court's oral pronouncement of sentence did not include any fees or fines. The abstract of judgment, however, reflects that defendant is obliged to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 restitution fine suspended unless parole is revoked (§ 1202.45), and a $20 court security fee.
On appeal, defendant contends the trial court erred by imposing "an additional" or "second" restitution fine pursuant to section 1202.4, subdivision (b), and an "additional," second court security fee. He asks that they be stricken from the abstract of judgment.
Defendant's argument is based primarily on this court's opinion in People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). In Chambers, "the trial court imposed a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 restitution fine later when the defendant's probation was revoked." (Id. at pp. 820-821.) This court held "[t]here is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken." (Id. at p. 823.)
But in this case, unlike Chambers, the trial court did not purport to impose "second" restitution and parole revocation fines (of differing or like amounts) when "defendant's probation was revoked." (Chambers, supra, 65 Cal.App.4th at pp. 820-821.) Indeed, the court imposed no prohibited duplicative fine or fee at defendant's 2010 sentencing. Rather, it appears that the abstract of judgment merely confirms or acknowledges the same restitution fine and court security fee that were imposed previously upon defendant's 2007 conviction.
Including these fees in the abstract of judgment is consistent with the principle upon which Chambers was decided: that "a restitution fine survive[s] the revocation of probation." (Chambers, supra, 65 Cal.App.4th at p. 822.) There, the survival of the $200 restitution fine made imposition of the $500 restitution fine improper. Here, the survival of the $200 restitution fine and $20 court security fee made it unnecessary to reimpose those still extant financial obligations (cf. People v. Cropsey (2010) 184 Cal.App.4th 961, 964-966), particularly when, as here, nothing in the record indicates those obligations had been satisfied.
In their respondent's brief, the People note a different restitution fine error. Once a defendant's probation is revoked, the court must lift the stay of the probation revocation restitution fine. (§ 1202.44.) At that point, the fine is due and payable, and the abstract of judgment should so reflect. (People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435 [imposition of previously stayed § 1202.44 probation revocation restitution fine is mandatory upon revocation of probation with sentence to state prison].) "On motion of a party, . . . or on its own motion, the reviewing court may order the correction . . . of any part of the record." (Cal. Rules of Court, rule 8.155(c)(1); see also People v. Mitchell (2001) 26 Cal.4th 181, 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) The People are correct. Accordingly, the abstract of judgment must be modified to reflect that the $200 probation revocation restitution fine imposed in 2007 is now due. (People v. Guiffre, supra, 167 Cal.App.4th at p. 435; § 1202.44.)
Section 1202.44 provides, in pertinent part: "In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on [the] record."
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DISPOSITION
The judgment is modified to lift the stay on the $200 section 1202.44 probation revocation restitution fine and order it due and payable. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
BUTZ, J.
We concur:
HULL, Acting P. J.
MAURO, J.