Opinion
A152418
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTOINETTE HAMILTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR943097)
Defendant Antoinette Hamilton pleaded no contest to one count of felony corporal injury to a cohabitant. The court suspended imposition of sentence and placed her on formal probation for three years, subject to various terms and conditions. Those terms included a restitution fine of $900 (Pen. Code, § 1202.4) and an additional restitution fine of $900, the latter of which was stayed unless defendant's probation was revoked (§ 1202.44).
All statutory references are to the Penal Code. --------
Defendant subsequently admitted violating multiple conditions of her probation, and her probation was revoked. She was sentenced to four years in state prison. The court ordered defendant to pay the previously imposed section 1202.4 restitution fine and removed the stay on the section 1202.44 probation revocation restitution fine, although it increased the amount of both from $900 to $1,200. It also imposed an additional $1,200 restitution fine, which was suspended unless defendant's parole is revoked (§ 1202.45). Defendant challenges the court's imposition of the $1,200 fines, contending it erred in increasing the section 1202.4 and 1202.44 fines from $900 to $1,200 and in imposing the section 1202.45 fine in the amount of $1,200. As the Attorney General concedes, defendant is correct.
Pursuant to section 1202.4, subdivision (b), "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." The amount of the fine is within the trial court's discretion, must be commensurate with the seriousness of the offense, and, in the case of a felony conviction, "shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000)." (§ 1202.4, subd. (b)(1).) Additional restitution fines in the same amount as the section 1202.4 fine are also required when defendant's sentence includes a period of probation or parole. (§§ 1202.44, 1202.45, subd. (a).)
Here, when the court sentenced defendant, it imposed a $900 section 1202.4 restitution fine. This fine "may only be imposed once at the time of conviction, which was when the probation was initially granted," and may not subsequently be increased. (People v. Perez (2011) 195 Cal.App.4th 801, 804-805; People v. Chambers (1998) 65 Cal.App.4th 819, 821-822 [original restitution fine "survived the revocation of the defendant's probation" and could not be increased upon probation revocation].) Thus, the trial court erred in increasing the section 1202.4 restitution fine from $900 to $1,200. And because the section 1202.44 and 1202.45, subdivision (a) fines must be the same amount as the section 1202.4 fine, those fines, too, should have been $900.
DISPOSITION
The abstract of judgment shall be amended to reflect section 1202.4, 1202.44, and 1202.45 fines of $900. The trial court is directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other regards, the judgment is affirmed.
/s/_________
Richman, Acting P.J.
We concur:
/s/_________
Stewart, J.
/s/_________
Miller, J.