People v. Eattock

Full title: THE PEOPLE, Plaintiff and Respondent, v. DUSTIN DOUGLAS EATTOCK, Defendant…

Court: California Court of Appeals, Third District, Butte

Date published: Dec 17, 2008

No. C057237 (Cal. Ct. App. Dec. 17, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. DUSTIN DOUGLAS EATTOCK, Defendant and Appellant. C057237 California Court of Appeal, Third District, Butte December 17, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. CM020563, CM024962

SIMS, Acting P. J.

After pleading guilty in case No. CM020563 to two counts of lewd and lascivious acts upon a child under the age of 14 and one count of misdemeanor child abuse, defendant Dustin Douglas Eattock was placed on formal probation for five years. The trial court imposed various fees and fines, including a restitution fine of $500 (Pen. Code, § 1202.4, subd. (b)).

The court revoked defendant’s probation after he pled guilty in case No. CM024962 to failing to file a change of address as required by his status as a registered sex offender and sentenced him to state prison in both cases for an aggregate term of eight years and eight months. At sentencing, defendant was ordered in case No. CM020563 to pay a $1,400 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $1,400 parole revocation fine (Pen. Code, § 1202.45), stayed pending successful completion of parole.

Defendant contends, and the People properly concede, that the court’s imposition of a $1,400 restitution fine at sentencing was error. Penal Code section 1202.4, subdivision (b), requires the imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. But where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820.) Thus, imposition of a second, or duplicate, restitution fine upon revocation of probation is unauthorized and must be stricken, notwithstanding the absence of an objection at sentencing. (Id. at pp. 821-823; People v. Arata (2004) 118 Cal.App.4th 195, 201.)

DISPOSITION

The trial court is directed to amend the abstract of judgment to reduce to $500 the restitution fine (Pen. Code, § 1202.4, subd. (b)) imposed in case No. CM020563 on February 7, 2005. The corresponding parole revocation fine (Pen. Code, § 1202.45) imposed in that case shall also be reduced to $500. As amended, the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

We concur: DAVIS, J., HULL, J.