Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR-232566
Swager, J.
This appeal comes to us following the revocation of defendant’s probation and imposition of a three-year state prison term, with an accompanying restitution fine. Defendant claims that the restitution fine is unauthorized and must be stricken. We conclude that the judgment must be modified to strike the second restitution fine imposed in the case.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the plea and the issue presented in this appeal we need not recite the facts pertinent to the underlying offense or the violation of probation.
Pursuant to a negotiated disposition, on June 5, 2006, defendant entered a plea of no contest to one count of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). Following a hearing on July 5, 2006, the trial court suspended imposition of sentence and placed defendant on probation for three years upon specified conditions. The court also imposed a $200 restitution fine under section 1202.4, subdivision (b), and $200 probation revocation fine under section 1202.44, which was stayed pending successful completion of probation.
The remaining charged counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. All further statutory references are to the Penal Code unless otherwise indicated.
Defendant admitted a violation of his probation on September 11, 2007, based on travel outside the state without court permission. The court subsequently revoked his probation, imposed the middle term of three years in state prison, and ordered defendant to pay another restitution fine of $600 pursuant to section 1202.4, along with a section 1202.45 parole revocation fine of $600, stayed pending successful completion of parole. This appeal followed.
We observe that the record is a bit confusing. At the sentencing hearing the court announced “a $600 fine pursuant to 1202.44,” whereas the minute order reflects a fine of “$600 per PC 1202.45 suspended unless parole is revoked.” (Italics added.) While we ordinarily would follow the general rule that the oral pronouncement of judgment is controlling (see People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185–186; People v. Zackery (2007) 147 Cal.App.4th 380, 385), we think the trial court merely misstated the code section at the hearing and obviously meant to impose a section 1202.45 parole revocation fine.
DISCUSSION
Defendant complains that the second probation revocation fine imposed by the trial court was unauthorized. He argues that the first probation revocation fine remained in effect when his probation was revoked, and the court was “not authorized to impose a different restitution fine for the same conviction.” He asks us to strike the second restitution fine. The Attorney General concedes the error, and we agree.
Section 1202.4, subdivision (b) provides that unless the trial court “finds compelling and extraordinary reasons for not doing so,” a separate and additional restitution fine must be imposed “[i]n every case where a person is convicted of a crime.” (See also People v. Andrade (2002) 100 Cal.App.4th 351, 357.) Subdivision (m) of section 1202.4 adds that, “In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.” In the event a defendant’s probation is revoked, as it was here, the restitution fine nevertheless survives revocation of probation and remains in force. (People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337; People v. Kleinman (2004) 123 Cal.App.4th 1476, 1481; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Thus, the courts have uniformly concluded that upon revocation of probation the trial court is without authority to impose the second restitution fine. (People v. Garcia (2006) 147 Cal.App.4th 913, 917; People v. Arata (2004) 118 Cal.App.4th 195, 202–203; People v. Chambers, supra, at p. 823.)
We also observe that defendant’s failure to object to the imposition of the section 1202.4 fine at the time of sentencing does not constitute a waiver of the “unauthorized sentence” issue. (People v. Scott (1994) 9 Cal.4th 331, 353–354; People v. Andrade, supra, 100 Cal.App.4th 351, 354.)
DISPOSITION
Accordingly, the judgment is modified by striking the second restitution fine in the amount of $600 imposed by the trial court upon revocation of defendant’s probation. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections.
We concur: Marchiano, P. J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.