Opinion
C041687.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. KATHERINE SUE GANDY, Defendant and Appellant.
In 1996, defendant Katherine Sue Gandy pled no contest to two counts of felony child abuse (Pen. Code, § 273a, subd. (a)) and was granted probation for a period of five years on conditions that included a restitution fine of $ 500. (Pen. Code, § 1202.4, subd. (b)(1); further section references are to this code.) Later in 1996, the trial court ordered defendants probation revoked in absentia when she failed to appear in court after testing positive for a controlled substance.
In 2002, defendant was apprehended, admitted violating her probation, and pled no contest to a new child endangerment charge. Her probation was terminated, and she was sentenced to six years in state prison for the two counts of felony child abuse to which she pled no contest in 1996. The court also imposed a restitution fine of $ 1,250 ( § 1202.4, subd. (b)(1)) and stayed an additional restitution fine in the same amount pending defendants successful completion of parole (§ 1202.45).
On appeal, defendant contends, and the People concede, that because the trial court previously had imposed a restitution fine of $ 500, the court erred by imposing another restitution fine of $ 1,250 when it terminated her probation. We agree. A restitution fine imposed as a condition of probation survives the revocation of probation, i.e., "remains in force"; consequently, the imposition of another restitution fine upon revocation of probation is not authorized. (People v. Chambers (1998) 65 Cal.App.4th 819, 822-823.) The issue was not waived by defendants failure to object in the trial court since imposition of the second restitution fine resulted in an unauthorized sentence. (People v. Chambers, supra, 65 Cal.App.4th at p. 823.)
Accordingly, the second restitution fine of $ 1,250 must be stricken, and the additional restitution fine imposed and stayed pursuant to section 1202.45 must be reduced to $ 500. (People v. Smith (2001) 24 Cal.4th 849, 851-853.)
DISPOSITION
The judgment is modified by striking the $ 1,250 restitution fine, leaving in force the $ 500 restitution fine originally imposed pursuant to section 1202.4, subdivision (b), and reducing to $ 500 the additional restitution fine imposed and stayed pursuant to section 1202.45. As modified, the judgment is affirmed.
The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: RAYE, J., and ROBIE, J.