Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Nos. SWF004031 & SWF009937. David B. Downing, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and James D. Dutton, Supervising Deputy Attorney General for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Timothy Wayne Hornbeck appeals the trial court’s imposition of a $200 restitution fine following the revocation and termination of his probation in case No. SWF004031. He argues the restitution fine, which was imposed pursuant to Penal Code section 1202.4, subsection (b), is unauthorized because it is duplicative of an earlier restitution fine imposed when he was granted probation in this case.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Defendant pled guilty in case No. SWF004031 on May 29, 2003, to one count of corporal injury to a spouse in violation of section 273.5, subdivision (a). Defendant was sentenced to three years’ probation subject to various terms and conditions, including drug testing and completion of a domestic violence prevention program. Defendant was also directed to pay a restitution fine of $200 pursuant to section 1202.4, subdivision (b). The propriety of the restitution fine imposed at this time is not challenged in defendant’s appeal.
The trial court dismissed all remaining allegations. These included a charge of assault in violation of section 273.5, subdivision (a) (count 2), and a prior conviction allegation for assault with a deadly weapon within the meaning of section 667.5, subdivision (b).
While defendant was on probation in case No. SWF004031 (the domestic violence case), new charges were filed against him on October 13, 2004, in case No. SWF009937. These charges were filed after police went to defendant’s residence to investigate a report of a domestic disturbance and found marijuana, a marijuana plant, and cultivation equipment on defendant’s person and property (the marijuana case).
On November 28, 2006, defendant pled guilty in the marijuana case to a violation of Health and Safety Code section 11358, willfully and unlawfully planting, cultivating, harvesting, and processing marijuana. He also admitted a prior strike pursuant to section 667, subdivisions (c) and (e)(1). The trial court imposed a prison term of two years eight months concurrent to any prison term imposed in the domestic violence case. A restitution fine of $200 pursuant to section 1202.4, subdivision (b), was also imposed, but defendant does not challenge the legality of this fine in his appeal.
All remaining counts and prior conviction allegations in case No. SWF009937 were dismissed.
During the same hearing on November 28, 2006, defendant admitted violating the break no laws condition of his probation in the domestic violence case based on the facts admitted in the marijuana case. The trial court then revoked and terminated defendant’s probation in the domestic violence case and imposed a two-year prison term, concurrent to any prison term imposed in the marijuana case. In addition, defendant was once again directed to pay a restitution fine of $200 pursuant to section 1202.4, subdivision (b). He now seeks to have this particular fine stricken as unauthorized.
DISCUSSION
Citing the minutes of a hearing on May 29, 2003, when he was granted probation in the domestic violence case, defendant contends the trial court imposed a restitution fine of $200 under section 1202.4, subdivision (b), as a condition of his probation. Defendant argues the trial court then erroneously imposed a second restitution fine of $200 in this case on November 28, 2006, when his probation was effectively terminated. To support the argument, defendant relies on People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers). He also cites the transcript of the November 28, 2006, hearing and the abstract of judgment filed in this case on November 29, 2006.
The People concede the issue raised by defendant’s appeal. However, the People’s responding letter brief refers only to the $200 restitution fine imposed in the marijuana case (No. SWF009937). We assume this is a typographical error. From the transcript of the hearing on November 28, 2006, and the resulting abstract of judgment filed November 29, 2006, it is apparent the trial court imposed a restitution fine of $200 in the marijuana case. Defendant does not argue, and, on the record before us, there is nothing to indicate the $200 restitution fine imposed in the marijuana case is not authorized by section 1202.4, subsection (b).
Based on Chambers, defendant correctly asserts that a restitution fine may only be imposed once in a particular case and survives the revocation of probation. (Chambers, supra, 65 Cal.App.4th at p. 821.) “[T]there is no provision for imposing a restitution fine after revocation of probation.” (Id. at p. 822.) However, Chambers is distinguishable from the facts shown on the record in this case. Chambers involved a restitution fine imposed upon revocation of probation which was greater than the restitution fine originally imposed at the time probation was granted. (Id. at p. 821.) In other words, the record in Chambers demonstrated that a restitution fine of $200 had been imposed when probation was granted, and a second fine of $500 was imposed when probation was revoked. (Ibid.) As a result, it was necessary to strike the larger fine of $500. (Ibid.)
Here, the minutes of the hearing held in the domestic violence case on May 29, 2003, state that the trial court suspended the proceedings, granted probation for a period of 36 months, and directed defendant to pay a restitution fine of $200 pursuant to section 1202.4, subdivision (b), as a condition of probation. On November 28, 2006, the trial court held a hearing involving both the domestic violence and marijuana cases. In the marijuana case, the trial court accepted defendant’s guilty plea and imposed a prison sentence. In the domestic violence case, the court accepted defendant’s admission of a probation violation based on the facts admitted in the marijuana case, terminated probation, and imposed a separate prison sentence. Without further explanation, the trial court then stated as follows: “In each case pay $200.” The resulting abstracts of judgment filed in each of these cases on November 29, 2006, indicate a single restitution fine of $200 was imposed in each case pursuant to section 1202.4, subdivision (b).
Contrary to defendant’s contention, we do not interpret the record before us to mean the trial court intended defendant to pay two separate restitution fines of $200 each, for a grand total of $400, in the domestic violence case. As noted in Chambers, a restitution fine imposed pursuant to section 1202.4, subdivision (b), survives the revocation of probation, and in any event, “[t]he triggering event for imposition of the restitution fine [under section 1202.4, subdivision (b)] is still conviction.” (Chambers, supra, 65 Cal.App.4th at p. 822.) In our view, the record demonstrates that the $200 restitution fine reflected in the abstract of judgment filed on November 29, 2006, was not imposed in addition to the $200 restitution fine imposed as a condition of defendant’s probation on May 29, 2003. Rather, the $200 restitution fine reflected in the abstract of judgment filed November 29, 2006, is simply a reiteration of the original restitution fine imposed as a condition of probation on May 29, 2003. As a result, we conclude there is no need to strike the $200 restitution fine shown in the minute order of May 29, 2003, as a condition of probation, or the $200 restitution fine reflected in the abstract of judgment filed November 29, 2006.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.