Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA036189, Charles A. Chung, Judge. Affirmed as modified.
William D. Farber, 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, A. Scott Hayward and Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Alqahira Bakra appeals from the judgment entered following revocation of probation under the terms of Proposition 36 and his sentence to prison for three years. He previously pled guilty to possession of a controlled substance, cocaine (Health & Saf. Code, § 11350, subd. (a)). He contends the trial court erred at sentencing by imposing an increased restitution fine and a parole revocation restitution fine in excess of the original restitution fine. Respondent agrees. For reasons stated in the opinion, we modify the restitution and parole revocation restitution fines.
According to the probation report, on September 12, 2006, sheriff detectives were assisting a patrol sergeant in setting up a containment area for two suspects wanted for vehicle thefts. Appellant, wearing clothing similar to one of the suspects, was seen walking out of the area and was detained. Thereafter, a cocaine pipe and a small piece of rock cocaine were retrieved from appellant’s pocket.
FACTUAL AND PROCEDURAL SUMMARY
On September 27, 2006, appellant pled guilty to possession of a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a). Pursuant to the negotiated plea, the court deferred entry of judgment for a period of 18 months and the second count, possession of an opium pipe in violation of Health and Safety Code section 11364, subdivision (a), a misdemeanor, was dismissed.
On March 1, 2007, the court terminated deferred entry of judgment on count 1 and reinstated criminal proceedings. On March 26, 2007, imposition of sentence was suspended and appellant was placed on formal probation for a period of three years under the terms and conditions of Proposition 36. He was ordered, inter alia, to pay a restitution fine in the sum of $200. No parole revocation restitution fine was imposed.
After finding appellant in violation of probation on three occasions, the court terminated probation and sentenced appellant to the upper term of three years. The court selected the upper term based on appellant’s “huge number of [prior] convictions.” Appellant was ordered to pay a $600 restitution fine and a $600 parole revocation restitution fine. The parole revocation restitution fine was stayed pending revocation.
DISCUSSION
Appellant contends the trial court erred by imposing a restitution fine of $600 and a parole revocation restitution fine of $600 because both fines exceeded the amount of the $200 restitution fine originally imposed by the trial court. 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) 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.”
“Despite the fact that the restitution fine is imposed as a condition of probation, however, it survives the probationary term. [Citation.] . . . [A] trial court has no statutory authority to order a second restitution fine upon revocation of probation, because a restitution fine imposed as a condition of probation remained in force despite revocation of probation.” (People v. Arata (2004) 118 Cal.App.4th 195, 201-202.)
Since the trial court here was without statutory authority toimpose the second restitution fine, it must be reduced. (See People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Additionally, since the parole revocation restitution fine is to be in the same amount as the restitution fine, the parole revocation restitution fine in the amount of $600 must be reduced to $200. (See Pen. Code, § 1202.45.)
Penal Code section 1202.45 provides, “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
DISPOSITION
The restitution and parole revocation restitution fines are reduced to $200, and in all other respects the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, Acting P. J., MANELLA, J.
Appellant observes the trial court failed to impose a parole revocation restitution fine at the time of imposition of the first restitution fine and concedes it was an unauthorized sentence that may be corrected at this time.