Opinion
D059842
04-18-2012
THE PEOPLE, Plaintiff and Respondent, v. JACQUES L. DANIELS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD203946)
APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard III, Judge. Affirmed as modified.
In 2007, Jacques L. Daniels pleaded guilty to two counts of robbery. (Pen. Code, § 211.) The court suspended execution of a four-year prison sentence and sentenced him to three years of formal probation. The court imposed fines and fees, including a $200 restitution fund fine (§ 1202.4, subd. (b)) and a $200 probation revocation restitution fine (§ 1202.44), suspended unless probation was revoked. In the present case, Daniels admitted violating the terms and conditions of his probation. The court revoked his probation and imposed the previously suspended four-year prison sentence, a $200 probation revocation restitution fine (§ 1202.44), a $200 parole revocation restitution fine (§ 1202.45), and what appears to be a second $200 restitution fund fine (§ 1202.4, subd. (b)).
All statutory references are to the Penal Code.
Daniels contends the court erred in imposing a second $200 restitution fund fine (§ 1202.4, subd. (b)) when his probation was revoked and it should therefore be stricken from the abstract of judgment. He argues that the $200 restitution fund fine (§ 1202.4, subd. (b)) is only to be imposed once at the time of conviction and remains in force despite revocation of probation. Because the abstract of judgment reflects the imposition of the $200 restitution fund fine (§ 1202.4, subd. (b)) and the court's language regarding the imposition of the fine was unclear, we agree that the $200 restitution fund fine (§ 1202.4, subd. (b)) should be stricken from the abstract of judgment.
FACTS
On April 28, 2011, Daniels admitted violating the terms and conditions of his probation. At the sentencing after the probation revocation hearing, the court sentenced him to four years in prison and imposed "a restitution fine pursuant to . . . section 1202.4[, subd.] (b) in the amount of $200, and the [$200] fine previously imposed in this case." The court also imposed a $200 parole revocation restitution fine under section 1202.45, suspended unless Daniels violates the terms and conditions of his parole.
The abstract of judgment reflects the imposition of three $200 fees: one under section 1202.4 subdivision (b), to be paid forthwith, another "due now" under section 1202.44, and another under section 1202.45 "suspended unless parole is revoked." The minute order is consistent with the abstract of judgment.
DISCUSSION
Section 12024.4, subdivision (b), provides that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . ." This fine "may only be imposed once at the time of conviction . . . when the probation [is] initially granted." (People v. Perez (2011) 195 Cal.App.4th 801, 805, citing People v. Chambers (1998) 65 Cal.App.4th 819, 822.)
It is unclear what fines the court intended to impose on revocation of probation, but the abstract of judgment reflects the imposition of three $200 fines, including one suspended fine (§ 1202.45) and two fines currently due (§§ 1202.44 & 1202.4, subd. (b).) However, the $200 restitution fund fine under section1202.4, subdivision (b), was already imposed at conviction, and therefore is unauthorized if imposed again at the probation revocation. (See People v. Perez, supra, 195 Cal.App.4th at p. 805.)
To ensure the court does not impose the $200 restitution fund fine (§ 1202.4, subd. (b)) on Daniels twice, the court should modify the abstract of judgment to reflect no additional imposition of the section 1202.4, subdivision (b), fine. The abstract of judgment should reflect only the imposition of the $200 probation revocation restitution fine (§ 1202.44) and the suspended $200 parole revocation fine (§ 1202.45).
DISPOSITION
The trial court shall amend the abstract of judgment consistent with this opinion. In all other respects the judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.