Opinion
C067319
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS MARIO ALMANZA, 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-050229
Defendant Thomas Mario Almanza entered a negotiated plea of no contest to second degree burglary of a vehicle in 2006. On appeal, he challenges the restitution fines imposed, and custody credits awarded, when he was ultimately sentenced to state prison in 2010. His contentions have merit, and we shall order the judgment amended.
A detailed recitation of the facts is unnecessary in view of defendant's contentions on appeal.
DISCUSSION
I. The Restitution Fines
When the trial court initially granted probation in February 2006, it imposed a $200 fine payable to the State Restitution Fund (Pen. Code, § 1202.4, subd. (b)) and stayed a $200 probation revocation restitution fine pursuant to section 1202.44.
Undesignated statutory references are to the Penal Code.
When the court later found defendant had violated his probation and sentenced him to 16 months in state prison on December 16, 2010, it also fined him $400 pursuant to section 1202.4, subd. (b) and imposed a $400 restitution fine pursuant to section 1202.45, but stayed the latter pending defendant's successful completion of parole. No mention was made of the previously stayed probation revocation restitution fine, imposed pursuant to section 1202.44.
Defendant contends, and the People concede, that the trial court violated People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers) by imposing a second, larger restitution fine under section 1202.4 when it sentenced him to prison and by imposing a parole revocation fine in excess of statutory parameters.
We agree that Chambers prohibits the court from imposing a restitution fine at sentencing different from the one it originally ordered when it placed defendant on probation. (Chambers, supra, 65 Cal.App.4th at p. 823 [there is "no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation"]; see also People v. Arata (2004) 118 Cal.App.4th 195, 201-203 [trial court erred in imposing a second $800 section 1202.4 restitution fine after it had already imposed $600 restitution fine when the defendant was granted probation; second restitution fine struck from judgment].) Defendant correctly notes that the parole revocation fine imposed pursuant to section 1202.45 must be in the same amount as the restitution fine. We shall order both reduced to $200.
We also note the presence of another 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 section 1202.44 probation revocation 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.) Accordingly, the abstract of judgment must also be modified to reflect that the $200 probation revocation restitution fine imposed in February 2006 is now due. (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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II. Conduct Credits
Defendant also contends the trial court erred in refusing to award him enhanced "matching" conduct credits against his state prison sentence, instead awarding him 151 actual days of custody credit, and only 74 days of conduct credit. The People concede the error and we agree.
At the time of defendant's offenses, former section 4019 provided, among other things, that "[w]hen a prisoner is confined in or committed to the county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence," he is entitled to one day of work credit and one day of conduct credit for each six-day period of confinement. (Former § 4019, subds. (a)(2), (b), (c); see Stats. 1982, ch. 1234, § 7, pp. 4553-4554.)
Effective January 25, 2010, Senate Bill No. 18 (2009-2010 3d Ex. Sess.) amended section 4019 to provide for the accrual of presentence credits at twice the previous rate. New (now former) subdivisions (b)(1) and (c)(1) of section 4019 provided that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised former subdivision (f), "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody . . . ." (§ 4019, former subd. (f); see also Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.), which amended (now former) section 2933 (Stats. 2010, ch. 426, § 1) regarding presentence conduct credits for defendants sentenced to state prison. That amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, former subd. (e)(1), (2), (3).) Neither defendant's current conviction nor his criminal record disqualify him from that formula. (§ 4019, former subds. (b) & (c).)
Defendant was sentenced on December 16, 2010, and is entitled to the benefit of the statutes in effect at the time of sentencing: the amended version of section 4019, effective January 25, 2010, and the amended version of section 2933, effective September 28, 2010. The trial court was required to calculate his presentence conduct credit pursuant to the law in effect at the time of sentencing.
DISPOSITION
The judgment is modified to (1) reduce the fines imposed pursuant to sections 1202.4 and 1202.45 from $400 to $200, respectively; (2) impose as due and payable the $200 probation revocation restitution fine imposed pursuant to section 1202.44 when probation was granted in 2006; and (3) award presentence credit consisting of 151 days of actual custody time, plus 151 days of presentence conduct credit, for a total of 302 days of presentence credit. 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 of judgment to the Department of Corrections and Rehabilitation.
BUTZ, J.
We concur:
ROBIE, Acting P. J.
MAURO, J.