Opinion
D075314
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. ROGELIO CORDERO, Defendant and Appellant.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS286388) APPEAL from a judgment of the Superior Court of San Diego County, Keri Katz, Judge. Affirmed in part and remanded with directions. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
In July 2016, Rogelio Cordero pleaded guilty to vandalism causing damage in excess of $400 (Pen. Code, § 594, subd. (a)(b)(1)). Cordero was placed on three years formal probation with certain conditions. One condition was payment of a $150 restitution fine (§ 1202.4, subd. (b)). The court also imposed a $150 restitution fine under section 1202.44 which was suspended unless probation was revoked.
All further statutory references are to the Penal Code unless otherwise specified.
In January 2019, Cordero's probation was revoked, and he was sentenced to a two-year term in local prison. The court also imposed an additional $300 restitution fine under section 1202.4, subdivision (b), which the court later reduced to $150.
Cordero appeals challenging only the second $150 restitution fine under section 1202.4, subdivision (b). He contends the court did not have the authority to impose a new restitution fine upon probation revocation. The Attorney General correctly agrees the second fine was unauthorized. We find both parties have correctly analyzed the issue and we will order the trial court to strike the $150 fine imposed under section 1202.4, subdivision (b) upon probation revocation and remand the case to the trial court with directions to amend the abstract of judgment.
The facts of the underlying offense or the probation violation are not relevant to the issue raised on appeal. We will not include the traditional statement of facts in the opinion. --------
DISCUSSION
A restitution fine under section 1202.4, subdivision (b) must be imposed upon a conviction. Where probation is granted, such fine must be a condition of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) There is no provision in the statute or in case law that authorizes the court to impose an additional restitution fine upon the revocation of probation. (People v. Preston (2015) 239 Cal.App.4th 415, 423).
The event which requires a restitution fine is the conviction, not a subsequent revocation of probation.
Both Cordero and the People agree the additional fine imposed in this case after revocation of probation was not authorized. We accept the agreement of the parties as the proper resolution of the issue.
DISPOSITION
The additional $150 restitution fine under section 1202.4, subdivision (b) imposed upon probation revocation was unauthorized. The case is remanded to the trial court with directions to strike such fine and to amend the abstract of judgment accordingly. In all other respects the judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. IRION, J.