Opinion
H036178
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD HAROLD BURCH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS071232A)
The only issue in this case is whether a restitution fund fine (Pen. Code, § 1202.4), which was imposed on appellant after the court revoked his probation and sentenced him to state prison, was unauthorized. For reasons that follow, we have determined that it was. Accordingly, we strike the fine and modify a corresponding parole revocation fine. (Pen. Code, § 1202.45.)
Proceedings Below
Given the nature of this appeal it is not necessary to set forth a detailed description of the underlying facts of this case.
On September 27, 2007, appellant pleaded no contest in Monterey County Superior Court case number SS071232A to one count of inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (e)(1).) Subsequently, on October 25, 2007, the court placed appellant on probation. The court imposed various fines and fees including a $200 restitution fund fine pursuant to Penal Code section 1202.4.
Thereafter, appellant violated his probation. The court revoked probation and sentenced appellant to five years in state prison. The court imposed a $1000 restitution fund fine pursuant to Penal Code section 1202.4, subdivision (b)(2). In addition, the court imposed, but suspended, a parole revocation fine in the same amount pursuant to Penal Code section 1202.45.
Discussion
Appellant argues that the trial court erred when it increased the restitution fund fine after his probation was revoked. Respondent concedes the issue and points out that the parole revocation fine must be reduced to $200.
Trial courts are required to order restitution fines in every case where a person is convicted of a crime, unless it finds compelling and extraordinary reasons for not so doing, which must be stated on the record. (Pen. Code, § 1202.4, subd. (b).) The amount of the fine shall be set at the court's discretion. If the defendant is convicted of a felony, the fine may not be less than $200 and may not exceed $10,000. (Pen. Code, § 1202.4, subd. (b)(1).) When the court imposes a sentence that includes a period of parole, it is required to assess a parole revocation fine "in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (Pen. Code, § 1202.45.)
Nevertheless, the imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823 (Chambers ); People v. Downey (2000) 82 Cal.App.4th 899, 921.) In Chambers, the trial court imposed a restitution fine on the defendant as a probation condition at the time of his conviction for first degree burglary. (Chambers, supra, 65 Cal.App.4th at p. 821.) Subsequently, the court revoked the defendant's probation, sentenced him to nine years in state prison and imposed another restitution fine. (Ibid.) The Chambers court reasoned that "[r]estitution fines are required in all cases in which a conviction is obtained. Furthermore, there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction. [Citation.]" (Id. at p. 822.) In striking the second restitution fine, the Chambers court found that the trial court had imposed two separate restitution fines for the same conviction and stated that "[t]here 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, since the trial court was without statutory authority to impose the second restitution fine, the Chambers court modified the judgment to strike the second fine. (Ibid.)
Here, the trial court imposed a restitution fine at the time of appellant's conviction and original grant of probation. Later, when revoking appellant's probation the trial court imposed an increased restitution fine of $1000. As in Chambers, here the trial court lacked statutory authority to impose an additional or greater restitution fine because the restitution fine imposed at the time of appellant's conviction remained in force despite the later revocation of appellant's probation. (Chambers, supra, 65 Cal.App.4th at p. 823.)
Moreover, pursuant to Penal Code section 1202.45, as noted, the trial court should have imposed a parole revocation fine "in the same amount as that imposed" as a restitution fine. This fine is suspended unless a defendant's parole is revoked. (Pen. Code, § 1202.45.) We may order the abstract of judgment amended to reflect the correct amount of the parole revocation fine. (People v. Smith (2001) 24 Cal.4th 849, 851-854.) Accordingly, we will modify the judgment.
Disposition
The judgment is modified by striking the $1000 restitution fine imposed by the trial court when the court sentenced appellant to state prison. The $200 restitution fine remains in force. Thus, the judgment is modified to reflect only the $200 restitution fine originally imposed in this case. In addition, the judgment is modified to reflect a $200 parole revocation fine, which is suspended unless parole is revoked (Pen. Code, § 1202.45). As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections and Rehabilitation.
_______
ELIA, J.
WE CONCUR:
____________
RUSHING, P. J.
_______
PREMO, J.