Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA068813, James D. Otto, Judge. Modified and, as so modified, affirmed.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Alfonso Brown appeals from the judgment entered following his plea of no contest to second degree robbery. Brown was initially placed on probation, but, after violating his probation conditions, was sentenced to two years in prison. He contends (1) the trial court erred by imposing increased restitution and parole restitution fines after probation was revoked, and (2) the abstract of judgment must be modified to correct a clerical error and conform to the court’s oral pronouncement of judgment. We agree with both contentions. We modify the judgment accordingly, and in all other respects affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2006, Brown was charged with two counts of second degree robbery (Pen. Code, § 211). Brown pleaded no contest to the first count. Pursuant to a negotiated disposition, the second count was dismissed. The trial court imposed a suspended two-year sentence, the low term, and placed Brown on three years’ formal probation. Brown was ordered to serve 30 days in county jail, and given credit for 30 days already served. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a $200 suspended parole restitution fine (§ 1202.45), and a $20 court security fee (§ 1465.8). It also ordered Brown to make restitution to the victim in an amount and manner to be determined by Brown’s probation officer. (§ 1202.4, subd. (f).) As one of the conditions of probation, Brown was required to complete 90 days of community service with the Department of Transportation (Caltrans).
All further undesignated statutory references are to the Penal Code.
Because the circumstances underlying the charged crimes are not relevant to the issues presented on appeal, we do not discuss them here.
In 2007, Brown admitted violating probation after he was arrested for failing to submit to a search of his residence and for possessing and using marijuana. The trial court reinstated probation.
In August 2008, after a hearing, Brown’s probation was revoked due to his failure to complete his Caltrans service and his false statement to his probation officer that he had completed substantially all his service. The trial court ordered Brown to serve the two-year prison sentence. It additionally ordered Brown to pay a $400 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $400 parole revocation fine. (§ 1202.45.)
DISCUSSION
1. Restitution fines.
Brown argues that the trial court erred by imposing a second, $400 restitution fine, and a second parole revocation fine, when his probation was revoked. He urges that imposition of these fines amounted to an unauthorized sentence susceptible to correction on appeal. The People concede that the trial court erred.
We agree. Section 1202.4, subdivision (b) provides that, in every case in which a person is convicted of a crime, the court shall impose a restitution fine, unless it finds compelling and extraordinary reasons for not doing so. Section 1202.4, subdivision (m) provides that in every case in which a defendant is granted probation, the court shall make the payment of restitution fines a condition of probation. (People v. Arata (2004) 118 Cal.App.4th 195, 201.) A trial court has no statutory authority to order a second restitution fine upon revocation of probation, because the original restitution fine imposed as a condition of probation remains in force, despite the revocation of probation. (Id. at pp. 201-202; People v. Chambers (1998) 65 Cal.App.4th 819, 821-822.)
For example, in People v. Chambers, supra, 65 Cal.App.4th 819, the trial court imposed a $200 restitution fine when it granted the defendant probation. Later, it imposed a $500 restitution fine when the defendant’s probation was revoked. (Id. at p. 821.) Chambers concluded the trial court was not authorized to impose the $500 fine. Chambers explained, “the trial court imposed two separate restitution fines for the same conviction: a $200 restitution fine at the time probation was granted and a $500 restitution fine at the time probation was revoked. There is no statutory authority justifying the second restitution fine because... the first restitution fine remained in force despite the revocation of probation.” (Id. at p. 823.) Accordingly, Chambers ordered the second restitution fine stricken. (Ibid.)
We agree with the reasoning in People v. Chambers, supra, 65 Cal.App.4th 819, and People v. Arata, supra, 118 Cal.App.4th 195. We accordingly order the second, $400 restitution fine stricken. Because the corresponding parole revocation fine must be in the same amount as the restitution fine, the $400 parole revocation fine must be stricken as well. (People v. Arata, supra, at p. 203; People v. Smith (2001) 24 Cal.4th 849, 851, 853.)
2. Correction of the abstract of judgment.
When orally pronouncing judgment, the trial court stated it was imposing the low term of two years for the robbery conviction. The abstract of judgment, while correctly reflecting the two-year term, incorrectly notes that two years is the midterm for the crime. Where an abstract of judgment differs from the court’s oral pronouncements, the abstract does not control. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, by statute, two years is the low term, not the midterm, for second degree robbery. (§ 213, subd. (a)(2).) Thus, it is apparent that the abstract of judgment contains a clerical error, which may be corrected by this court on appeal. (People v. Mitchell, supra, at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) We order the judgment modified accordingly.
DISPOSITION
The judgment is modified by striking the $400 restitution fine and the $400 parole restitution fine imposed by the trial court. The $200 restitution fine, and the suspended $200 parole restitution fine, remain in effect. The abstract of judgment is modified to reflect that the two-year term imposed is the low term, not the midterm. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these modifications, and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.