Opinion
C083374
09-08-2017
THE PEOPLE, Plaintiff and Respondent, v. CHASE CODY COTTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM038062)
The only issue raised in this appeal is that the trial court incorrectly stated the amount of a restitution fine at sentencing ($280 instead of $240). The abstract of judgment shows the fine as $240; the parties agree that is the correct amount, and we agree with the parties.
Defendant Chase Cody Cotton asks this court to reduce the fine to $240. We shall do so. We also modify the sentence to reflect the correct method of calculating the sentence on subordinate terms. We affirm the judgment as so modified.
I. BACKGROUND
Because our disposition does not depend on the facts of the case, we omit them.
After defendant entered a plea of no contest to dissuading a witness from reporting a crime (count 1) and inflicting corporal injury on a child (count 2) in case No. CM038062, and to misdemeanor battery in case No. SCR100274, the trial court suspended imposition of sentence and granted defendant 48 months' probation on condition that he serve 120 days in jail, enroll in anger management and child abuser classes, complete a substance abuse treatment program and a parenting course, and stay away from the victims in both cases. The court imposed fines and fees, including a $240 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $240 suspended probation revocation restitution fine (§ 1202.44) as to case No. CM038062.
Undesignated statutory references are to the Penal Code.
Following defendant's third admitted probation violation, the trial court terminated probation and sentenced defendant to four years eight months in state prison. After stating that the restitution fines under sections 1202.4, subdivision (b) and 1202.44 were $240, the court ordered "the restitution fine of $280 under [section] 1202.45." However, the abstract of judgment shows that fine, along with the other restitution fines, as $240.
II. DISCUSSION
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her 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." Where the trial court has not followed this statutory requirement, the appellate court must modify the amount of the fine imposed under section 1202.45 to match that imposed under section 1202.4, subdivision (b). (People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337.)
The Attorney General properly concedes error, but asserts that because the abstract of judgment states the correct amount, the appeal is moot. The Attorney General is incorrect. As defendant points out, the abstract of judgment is not the judgment, and in case of conflict the trial court's oral pronouncement of judgment prevails. (People v. Hong (1998) 64 Cal.App.4th 1071, 1075.) Therefore, we modify the judgment to show the fine as $240, and affirm as modified.
We also note another error made by the trial court in imposing sentence. After finding that count 2 was the principal term and imposing the four-year middle term, the court then found that the two-year middle term was the appropriate term on count 1 and imposed that term, then stayed all but one-third of it. This is not the correct procedure. The correct sentencing method on a subordinate term is to impose one-third of the middle term, not to impose the full term and stay two-thirds of it. (See § 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) In modifying the judgment, we also modify it to reflect a sentence of eight months consecutive on count 1. The abstract of judgment does not need amendment because it so shows the sentence on count 1.
Although this issue was not briefed, we will address the issue without supplemental briefing because the law is clear. Any party wishing to speak to this issue may petition for rehearing. --------
III. DISPOSITION
The sentence is modified to reduce the fine under section 1202.45 to $240 and to make the sentence on count 1 eight months consecutive. As modified, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
MAURO, J.