Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA067113Tomson T. Ong, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, 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 and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Juan Jose Mermijo appeals from the judgment entered following an order revoking probation. Previously he pled no contest to shooting at an occupied motor vehicle (Pen. Code, § 246) and admitted personal use of a firearm within the meaning of Penal Code section 12022.5, subdivision (a). Pursuant to his negotiated plea, he was sentenced to prison for 17 years, execution of the sentence was suspended and he was placed on formal probation under certain terms and conditions, including that he serve 642 days in jail, with credit for 642 days. He contends the trial court erred when it imposed restitution and parole revocation fines of $3,400 and when it imposed a second security fee under Penal Code section 1465.8. For reasons stated in the opinion, we affirm the judgment and strike the restitution and parole revocation fines of $3,400 and the second security fee.
Pursuant to the negotiated plea, two counts of assault with a firearm on a person (Pen. Code, § 245, subd. (a)(2)) were dismissed pursuant to Penal Code section 1385.
Prior to appellant’s plea, there had been a hung jury following a trial on the three counts and a mistrial was declared. Thereafter, the prosecution indicated it was unable to proceed and appellant’s motion to dismiss was granted. The prosecution’s motion to refile under the same case number was granted and the court deemed the information filed pursuant to Penal Code section 1387.2.
FACTUAL AND PROCEDURAL SUMMARY
On August 24, 2005, at approximately 8:00 p.m., in Long Beach, Wilfredo Duarte was talking to appellant “regarding some driving involving [Mr. Duarte’s] wife and . . . daughter.” At first the conversation was casual, but then Mr. Duarte became angry and punched appellant. Mr. Duarte’s friend, David Rodriguez, grabbed Mr. Duarte and they got into Mr. Rodriguez’s vehicle and drove off. As they drove away, Mr. Duarte heard gunshots and Mr. Rodriguez told Mr. Duarte to “duck.” Mr. Duarte got underneath the seat and did not see who was doing the shooting. As Mr. Rodriguez was driving away, he looked in his rearview mirror and saw appellant shooting at the vehicle.
At the time of appellant’s plea, the court stated appellant would have to pay a restitution fine in the amount of $200 and that if he violated probation it would be 17 times $200 or $3,400 and appellant stated he understood.
The evidence at the probation violation hearing established that on April 11, 2007, Torrance Police Officer Mark McGee was sitting in a parked truck conducting an undercover surveillance on West 182 Street in Torrance. He saw appellant walking away from a truck that was parked behind Officer McGee’s truck. Appellant was standing by another car that was across the street and started staring at Officer McGee. Appellant entered the car, rolled the window down, motioned the officer to roll down his window and then yelled, “‘Don’t fucking stare at me. What the fuck are you staring at you don’t know me.’” Officer McGee yelled, “‘It’s a public street. I can look if I want to’ and . . . asked him what he took out of the truck.” Appellant slowly made a U-turn, pulling along side of the officer’s truck, and reached underneath the seat of the car he was in. Appellant turned into the driveway of an apartment complex, got out of the car and walked towards the officer’s truck carrying a crowbar. Appellant walked at a quick pace, looking right at the officer, holding the crowbar in his right hand, a foot and one half away from his leg so it was very visible and threatening to the officer.
Officer McGee pulled his badge out from under his clothing and got out of his truck. He then drew his weapon and pointed it at appellant, telling him to drop the crowbar. Appellant turned immediately back towards his car. When Officer McGee ordered him to get on the ground, appellant complied. Appellant said he was on probation for attempted murder, he had a 17-year prison sentence over his head and that he would never try to hit the officer.
Officer McGee acknowledged that when appellant was yelling at him, appellant did not know who he was. He was in a pickup truck, wearing regular clothes and his badge was on a necklace not visible until he pulled it out from under his clothing.
Appellant testified as a condition of probation he was required to attend anger management classes and had failed to attend five classes. He had planned to transfer the crowbar from his car into his truck.
The court found by a preponderance of the evidence that appellant violated his probation. Appellant had been ordered not to use, own or possess any dangerous or deadly weapons and the court found appellant had used the crowbar as a weapon.
The court sentenced appellant under count 1 to prison for seven years and to an additional ten years for the firearm use allegation for a total of 17 years. Pursuant to Penal Code section 1202.4, appellant was ordered to pay a restitution fine of $3,400 plus a parole revocation fine pursuant to Penal Code section 1202.45 in the same amount, to be suspended unless parole was revoked. He was also ordered to pay a $20 assessment fee pursuant to Penal Code section 1465.8, subdivision (a)(1).
DISCUSSION
I
Appellant contends the trial court erred when it imposed additional restitution and parole revocation fines of $3,400. We agree. Penal Code section 1202.4, subdivision (b) provides, “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” Subdivision (m) of that section provides, “In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to [Penal Code] Section 1214 until the obligation is satisfied.”
“There 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. [Citation.]” (People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Since the parole revocation fine is to be in the same amount as the restitution fine, the second parole revocation fine must also be stricken. (See Pen. Code, § 1202.45.) Further, there is no statutory authority for respondent’s theory the trial court set the restitution fine at $3,400 with $200 payable as a condition of probation and the remainder stayed and payable only if appellant violated probation.
II
Appellant also contends the trial court erroneously imposed a second $20 court security assessment fee pursuant to Penal Code section 1465.8. Respondent agrees. Penal Code section 1465.8, subdivision (a)(1) provides, “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .” Appellant was convicted of only one criminal offense, thus the security assessment fee could be imposed only once.
DISPOSITION
The $3,400 restitution and parole revocation fines and the second $20 court security assessment fee are stricken and in all other respects the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, J., MANELLA, J.