Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. SCD204066, Frank A. Brown, Judge.
HALLER, J.
In July 2007 Marty A. Edwards entered negotiated guilty pleas to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)) while released from custody (Pen. Code, § 12022.1, subd. (b)), driving with a suspended license (Veh. Code, § 14601.1) (case number SCD205647, "the drug case") and inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) (case number SCD204066, "the assault case"). In the assault case, the court placed Edwards on five years' probation. One condition of probation was that he "[o]bey all laws." In the drug case, the court deferred entry of judgment (Pen. Code, § 1000) for possessing a controlled substance with credit for time served for driving with a suspended license.
In late 2007 the court revoked probation in the assault case, suspended criminal proceedings, and ordered a mental competency examination and hearing (Pen. Code, § 1368 et seq.). The court found Edwards was not mentally competent and ordered him committed to Patton State Hospital (Pen. Code, §§ 1368, 1370) for three years. In 2008 the court found Edwards was mentally competent and reinstated criminal proceedings. Meanwhile, in the drug case, the court terminated the deferred entry of judgment.
In November 2008 the court dismissed the Penal Code, section 12022.1, subdivision (b) enhancement and sentenced Edwards to four years in prison: the four-year upper term for inflicting corporal injury on a cohabitant and a concurrent two-year middle term for possessing a controlled substance. Edwards appeals. We remand for resentencing.
BACKGROUND
In January 2007 Edwards unlawfully used force or violence against his female cohabitant, causing a traumatic condition (the assault case). On March 30 he knowingly possessed a usable amount of cocaine base and drove with a suspended driver's license (the drug case).
In 2007, when the court placed Edwards on probation in the assault case, it expressly stated it was suspending imposition of sentence. The court explained it did not "like tying the next sentencing judge's hand." The probation officer recommended suspending execution of a four-year upper term prison sentence. The court signed the recommended order notwithstanding its comments on the record. Based on the signed order, subsequent probation reports stated that the court had suspended execution of a four-year sentence. In 2008 the case came before a different judge for sentencing. That judge, who was apparently unaware of what the previous judge had stated on the record, sentenced Edwards to the four-year upper term, noting that it was executing a sentence that had been imposed in 2007 and that it had no discretion to do otherwise.
The plea agreement included a Blakely waiver (Blakely v. Washington (2004) 542 U.S. 296).
In this appeal, Edwards's appointed counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel listed, as possible but not arguable issues, (1) whether the finding that Edwards violated the "[o]bey all laws" condition of his probation lacked sufficient evidence and was an abuse of discretion and (2) whether the court properly calculated fines and fees. We granted Edwards permission to file a brief on his own behalf. He did not respond.
In our review of the record we agreed that certain fines and fees may not have been properly imposed and asked for further briefing from both counsel on that issue. We also asked counsel to comment on the discrepancy between the court's oral statement at the 2007 sentencing hearing in the assault case that it was suspending imposition of sentence and the probation officer's recommended order, signed by the court, suspending execution of sentence. We found no merit to the possible issue concerning the probation violation. Both counsel filed letter briefs.
DISCUSSION
I
SENTENCING
Both parties agree the four-year sentence was not imposed in 2007 and thus could not be executed in 2008. They conclude the sentence was not based on any exercise of the court's sentencing discretion or applicable Rules of Court and this case should be remanded for resentencing. We agree and therefore remand the case for resentencing.
II
FINES
A
Restitution Fines (Both Cases) and Parole Revocation Fine (the Assault Case)
The court initially imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)) in the assault case. In 2008 it imposed a $500 restitution fine and suspended a $500 parole revocation fine (Pen. Code, § 1202.45) in each case. We asked counsel to comment on whether the court had the authority to increase the restitution fine from $200 to $500 and to impose the accompanying $500 parole revocation fine. We also asked counsel to comment on a discrepancy between the 2008 reporter's transcript, which states that the restitution fines are stayed, and the minute orders and abstracts of judgment, which state they are payable forthwith.
Both parties properly agree the increase in the restitution fine in the assault case was not permitted and the parole revocation fine was required to be in the same amount as the restitution fine. (People v. Chambers (1998) 65 Cal.App.4th 819; People v. Downey (2000) 82 Cal.App.4th 899, 921-922; People v. Johnson (2003) 114 Cal.App.4th 284, 306-308.) Respondent properly states the abstracts of judgment should conform to the statement in the 2008 sentencing transcript that the restitution fines are stayed. On remand, the court is directed to reduce the restitution fine and the parole revocation fine to $200 in the assault case and to amend the abstracts of judgment in both cases to reflect that the restitution fines are stayed.
Edwards's counsel did not comment on this issue.
B
Probation Revocation Fine (the Assault Case)
The court originally suspended a $200 probation revocation fine (Pen. Code, § 1202.44) in the assault case. Penal Code section 1202.44 provides that the probation revocation fine is to be "in the same amount as" the restitution fine, "shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record." (§ 1202.44; People v. Guiffre (2008) 167 Cal.App.4th 430.) When the court sentenced Edwards to prison, it did not expressly mention the probation revocation fine. We asked counsel to comment on the propriety of the $200 probation revocation fine and the court's failure to mention it or state reasons for waiving it at the 2008 sentencing hearing. Both parties properly agree this fine is mandatory. On remand, the court is directed to amend the abstract of judgment to reflect that the probation revocation fine is now due and payable.
III
CONCLUSION
Having completed our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738; resolved the issues concerning sentencing and fines; and found the probation violation issue is without merit, we are satisfied there are no other reasonably arguable appellate issues. Edwards has been competently represented by counsel on this appeal.
DISPOSITION
The judgments of conviction are affirmed. The cases are remanded for resentencing. The trial court is directed to (1) exercise its discretion in choosing a prison term for inflicting corporal injury on a cohabitant in the assault case (case number SCD204066) and (2) amend the abstracts of judgment to reflect a restitution fine and parole revocation fine of $200 rather than $500 in the assault case, that the restitution fines are stayed in both cases, and that probation revocation fine in the assault case is now due and payable.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.