Opinion
C055675
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE DAY, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant appeals from the restitution fine (Pen. Code, § 1202.4, subd. (b)) and parole revocation fine (§ 1202.45) imposed following the revocation of his probation. The People properly concede error. We will accept their concession.
Undesignated statutory references are to the Penal Code.
RELEVANT PROCEDURAL HISTORY
Because the facts underlying defendants convictions are not relevant to this appeal, they are not recounted here.
On May 2, 2006, after pleading no contest to petty theft with a prior theft conviction (§ 666) defendant was granted three years probation. Among the various fines imposed relative
to that probation, the court imposed a $200 restitution fine (§ 1202.4) and a $200 probation revocation fine. (§ 1202.44.)
On June 13, 2006, a petition to violate probation was filed alleging defendant had failed to report to his probation officer. Defendant admitted the probation violation on July 18, 2006. Probation was revoked and reinstated with the modification that defendant serve 60 days in county jail.
A second petition to violate probation was filed on September 27, 2006, again alleging defendant had failed to report to his probation officer. On October 17, 2006, defendant admitted this violation of probation. Probation was revoked. The court sentenced defendant to the upper term of three years, and imposed a restitution fine of $600 under section 1202.4 and a corresponding parole revocation fine of $600 under section 1202.45. The People and defense counsel advised the court that the restitution fines had already been imposed, and the court reimposed the earlier fines of $200. Execution of the sentence was suspended and defendant was reinstated on probation, with the understanding any future violations of probation would result in the stay being lifted.
On December 1, 2006, a third violation of probation was filed, alleging defendant had committed a battery. (§ 243, subd. (e)(1).) On March 6, 2007, the petition was amended to instead allege defendant had resisted arrest. Defendant admitted this violation.
The court revoked probation and imposed the sentence previously stayed of three years. Then, apparently looking at the record from the October 17, 2006, hearing and not finding counsels advisements on the previously imposed $200 restitution fine, the court imposed what it believed to be the previously imposed and stayed $600 restitution fine and parole revocation fine.
It appears from the transcript that no one had the entire record of the previous proceedings, and specifically not the sentencing transcript.
DISCUSSION
I
As defendant argues and the People properly concede, the trial court erred in imposing the $600 restitution fine and the corresponding $600 parole revocation fine.
"[A] restitution fine survive[s] the revocation of probation. . . . Restitution 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.]" (People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers ).)
In Chambers, the defendant entered a no contest plea to first degree burglary. The trial court granted probation and, as a condition of probation, imposed a $200 restitution fine. The trial court later revoked probation and sentenced defendant to state prison, imposing a $500 restitution fine. (Chambers, supra, 65 Cal.App.4th at p. 821.) We concluded in Chambers that the $500 restitution fine was not authorized. (Ibid.) "There is no statutory authority justifying the second restitution fine because, as discussed above, the first restitution fine remained in force despite the revocation of probation." (Id. at p. 823.)
Here, the trial court imposed a $200 restitution fine in granting probation and a $600 restitution fine in sentencing defendant to state prison. The second restitution fine of $600 was not authorized. The first restitution fine of $200 "remained in force despite the revocation of probation." (Chambers, supra, 65 Cal.App.4th at p. 823.) The second restitution fine of $600 will be stricken. (Ibid.) Since the corresponding parole revocation fine must be in the same amount as the restitution fine (§ 1202.45; People v. Smith (2001) 24 Cal.4th 849, 853), we will also reduce the parole revocation fine to $200.
DISPOSITION
The judgment is modified by striking the $600 restitution fine imposed by the trial court. The $200 restitution fine remains in force. The $600 parole fine is reduced to $200. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
NICHOLSON, J.
ROBIE, J.