Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F04600207-5 & F07903601, Rosendo Pena, Jr., Judge.
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
On May 11, 2004, appellant, Fernando Garcia, Jr., pled no contest in case No. F04600207-5 to possession of stolen property (Pen. Code, § 496, subd. (a)). On December 13, 2004, the court placed Garcia on three years’ probation on condition he serve 240 days’ local time. The court also ordered Garcia to pay a $200 restitution fine and a $20 court security fee.
All further statutory references are to the Penal Code, unless otherwise indicated.
On July 18, 2007, in case No. F07903601 Garcia pled guilty to three counts of assault with a firearm (§ 245, subd. (a)(2)) and admitted a personal use of a firearm enhancement (§ 12022.5, subd. (a)(1)) and a gang enhancement (§ 186.22, subd. (b)(1)) in each count in exchange for an indicated sentence of 17 years.
On January 11, 2008, the court sentenced Garcia in both cases to an aggregate term of 17 years as follows, the middle term of three years on count 2, a 10-year gang enhancement and a four-year arming enhancement in that count, a concurrent 17-year term on count 3, a concurrent 17-year term in count 4, and a concurrent middle term of two years on Garcia’s possession of stolen property conviction in case No. F04600207-5. In case No. F04600207-5, the court also ordered Garcia to pay a $200 restitution fine and a $20 court security fee. On appeal, Garcia contends the court erred in case No. F04600207-5 by imposing duplicate restitution fines and security fees in that case. We will affirm.
FACTS
Case No. F04600207-5
Garcia was a Sureño gang member. On February 18, 2004, he and a juvenile male broke into a car parked across the street from where Garcia lived and took numerous items. Garcia was detained in the neighborhood based on the victim’s description and arrested after a search of his person yielded items taken from the victim’s car.
Case No. F07903601
On May 6, 2007, three male Norteño gang members from San Jose were sitting in a parked car in Sanger when a truck drove up and stopped in the street. Garcia and Jesus Rodriguez, a fellow Sureño gang member, got out of the truck and started firing handguns at the men in the parked car, striking one of them in the arm. Garcia and Rodriguez were arrested a short time later after police officers stopped their truck.
DISCUSSION
Garcia contends the court erred by imposing a second $200 restitution fine and a second $20 security fee in case No. F04600207-5 when it sentenced him on January 11, 2008. Respondent contends the court erred by not listing the three security fees imposed in case No. F07903601 in Garcia’s abstract of judgment. We agree with respondent.
Section 1202.4 requires the court to impose a restitution fine in every case where a person is convicted of a crime. (§ 1202.4, subd. (b).) Further, when a defendant is granted probation and a restitution fine is imposed, the restitution fine survives if probation is subsequently revoked. (People v. Chambers (1998) 65 Cal.App.4th 819, 822.)
Section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense .…”
Here, all the record shows is that in case No. F04600207-5,the court ordered Garcia to pay a $200 restitution fine and a $20 court security fee when it originally placed him on probation and again on January 11, 2008, when it sentenced him in that case. However, there is nothing in the record indicating that Garcia ever paid these amounts or that in ordering Garcia to pay these amounts at his January 11, 2008, sentencing hearing, the court was not simply restating the amount it had previously ordered Garcia to pay. Additionally, Garcia’s abstract of judgment lists only one restitution fine for case No. F04600207-5.
“It is presumed that official duty has been regularly performed.” (Evid. Code, § 664.) Further, “[t]he appellant has the burden of establishing error and, lacking an adequate record, a reviewing court will presume the evidence supports the judgment. [Citation.]” (In re Angel L. (2008) 159 Cal.App.4th 1127, 1137.)
Applying these principles to the case, we reject Garcia’s contention that the trial court erred at his January 11, 2008, sentencing hearing by imposing a second restitution fine and a second court security fee in case No. F04600207-5.
Moreover, an abstract of judgment must memorialize all fines and fees. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Garcia’s abstract of judgment indicates the court imposed a court security fee in each case but does not indicate that it imposed three security fees in case No. F07903601, one for each of Garcia’s three convictions in that case. Additionally, Garcia’s abstract of judgment does not memorialize the stayed, 10-year gang enhancements and stayed, four-year arming enhancements the court imposed in counts 3 and 4 in case No. F07903601. We will direct the trial court to correct these omissions.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment that shows the stayed gang enhancements, stayed arming enhancements and the three security fees the court imposed in case No. F07903601. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.