Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA077757, SA059939, Jack P. Hunt, Judge.
Janice Wellborn, 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, Steven E. Mercer and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Armando Serrano appeals from the judgment entered following an order revoking probation in case number SA059939 and in case number KA077757 his no contest plea to robbery in the second degree (Pen. Code, § 211), his admission that he suffered one prior conviction of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)) and one prior serious conviction within the meaning of Penal Code section 667, subdivision (a)(1). In case number KA077757, he was sentenced to prison for a total of nine years, consisting of the low term of two years, doubled by reason of the Three Strikes law, plus five years for the serious felony enhancement. In case number SA059939, he was sentenced to the middle term of three years to run concurrent to the sentence in case KA077757. He contends the trial court erroneously imposed a restitution fine following revocation of probation in case number SA059939. For reasons stated in the opinion, we modify the judgment and affirm.
In case number SA059939, appellant previously pled guilty to one count of second degree robbery (Pen. Code, §211). Imposition of sentence was suspended and he was placed on formal probation for three years upon various terms and conditions. At the time of appellant’s plea, it was indicated that “the robberies themselves were of phone cards.”
FACTUAL AND PROCEDURAL SUMMARY
The statement of facts is taken from the transcript of the preliminary hearing and is the basis of the convictions in case number KA077757 and the probation violation in case number SA059939.
On January 16, 2007, Nathan Lang was working as a loss prevention manager at Chick’s Sporting Goods in West Covina when he observed appellant enter the store carrying a black shopping bag. Appellant walked over to racks of clothing, ripped price tags off clothing, put clothing in his bag and walked out of the store without paying for the merchandise.
Outside of the store, Mr. Lang approached appellant, identified himself and asked for the articles of clothing appellant had put in the bag. Appellant said he did not know what Mr. Lang was talking about and tried to shield the bag from Mr. Lang’s view. When Mr. Lang said appellant could give the property back or the police would be called, appellant kicked Mr. Lang in the upper thigh. Appellant attempted to run, carrying the bag, and Mr. Lang grabbed him by the shoulders and forced him to the ground. The men struggled, during which time appellant kicked Mr. Lang several times and grabbed his crotch and testicles. With the help of two other store employees, appellant was subdued and handcuffed. Inside appellant’s bag, Mr. Lang found five pairs of shorts belonging to the store.
DISCUSSION
Appellant contends the trial court erroneously imposed an additional restitution fine following revocation of probation in case number SA059939. Respondent agrees.
As appellant observes, on September 8, 2006, when he was placed on probation, the trial court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b). Thereafter, probation was revoked and when he was sentenced to prison on February 20, 2007, the court imposed an additional restitution fine of $200 pursuant to Penal Code section 1202.4, subdivision (b).
The trial court erroneously imposed two separate restitution fines for the same conviction. “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.)
DISPOSITION
The judgment is modified by striking the restitution fine of $200 imposed on February 20, 2007. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and deliver it to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.