Opinion
C055725
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. IVAN ALEJANDRO HERRERA, Defendant and Appellant.
NOT TO BE PUBLISHED
After pleading no contest to disturbing the peace by fighting (Pen. Code, § 415, subd. (1)) and admitting the offense was committed for the benefit of a street gang within the meaning of section 186.22, subdivision (d), the trial court placed defendant Ivan Alejandro Herrera on formal probation for three years and imposed numerous conditions of probation. The court ordered defendant to serve 180 days in county jail but stayed imposition to gauge defendants performance on probation. When defendant violated the terms of his probation, the court revoked defendants probation and sentenced him to two years in state prison.
On appeal, defendant contends the trial court erred in imposing a duplicate restitution fine. Finding an error in the abstract of judgment, we will direct the trial court to amend the abstract of judgment but otherwise affirm the judgment.
DISCUSSION
The trial court placed defendant on probation on July 11, 2005. At that time, it imposed a $200 restitution fine. (§ 1202.4, subd. (b).) On April 4, 2007, after revoking defendants probation, the trial court imposed a $200 restitution fine at sentencing. Defendant contends that the latter $200 restitution fine is unauthorized and must be stricken.
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. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820 (Chambers).) 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.)
The alleged error in this case is not as clear as it was in Chambers, where plainly the trial court ordered two separate restitution fines. (Chambers, supra, 65 Cal.App.4th at p. 821.) Here, the amount of the restitution fine imposed in 2007 ($200) was identical to the amount previously imposed; there was no indication that defendant had paid anything on the previous fine, which would make the $200 amount correct; the oral pronouncement of the fine at the sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects only one $200 restitution fine under section 1202.4. Thus, it is unclear whether the trial court improperly imposed a second fine, although we observe that we generally indulge in the presumption that the trial court was aware of, and properly applied, the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
On the other hand, the abstract of judgment does not specify that the $200 restitution fine was imposed at the time probation was granted on July 11, 2005, rather than when defendant was sentenced to prison on April 4, 2007. Accordingly, we conclude the abstract of judgment should be modified to clarify that the restitution fine was imposed on July 11, 2005. If this modification reflects the trial courts intention at the sentencing hearing on April 4, 2007, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, then modification of the abstract of judgment would be warranted to repair the unauthorized sentence. In either factual scenario, the abstract of judgment must be amended.
DISPOSITION
The trial court is directed to amend the abstract of judgment to reflect this modification and to specify that the $200 restitution fine (§ 1202.4, subd. (b)) was imposed on July 11, 2005. 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:
SIMS, Acting P.J.
RAYE, J. --------------- Notes: Hereafter, undesignated section references are to the Penal Code.