Opinion
A132240
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. HAJJI BOBBY HOWARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 2428754, SCN 209730)
I.
INTRODUCTION
Appellant received a state prison sentence after his probation was revoked following his pleas of guilty to two counts (one felony and one misdemeanor). The sole contention appellant raises on appeal is that a $200 victim restitution fine imposed pursuant to Penal Code section 1202.4, and a corresponding $200 parole revocation fine imposed but suspended pursuant to section 1202.45, must be stricken from the abstract of judgment because the restitution fine was not orally pronounced at the time of sentencing.
All further undesignated statutory references are to the Penal Code except where otherwise indicated.
We disagree. At the time appellant was placed on probation, the restitution fine was orally imposed, but suspended. Consequently, this fine survives the subsequent revocation of appellant's probation. (People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers).) Since a nondiscretionary parole revocation fine is required to be imposed when a restitution fine is also imposed, the trial court did not err by including both fines in the abstract of judgment.
II.
PROCEDURAL HISTORY
An information was filed by the San Francisco District Attorney's Office on September 3, 2009, charging appellant with one count each of assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), sale and giving away of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and selling a substance in lieu of a controlled substance (Health & Saf. Code, § 11355). Appellant entered pleas of not guilty to each of the counts on September 4.
On October 8, 2009, appellant withdrew his not guilty pleas and entered pleas of guilty to counts one and two, as part of a negotiated plea. In return, count one was amended reducing it from a felony to a misdemeanor, and count three was dismissed in the interest of justice. The proposed disposition was a suspended sentence and a grant of three years' probation, with a six-month county jail term. It also included a proposed victim fund restitution fine of $200, and a probation revocation fine of $200, which was to be stayed unless or until he violated probation.
Sentencing took place on November 10, 2009. At that time, sentencing was suspended, and appellant was granted three years formal probation, subject to his serving a six-month term in the county jail. Appellant was also ordered to pay a restitution fine of $200, pursuant to section 1202.4, subdivision (b), and a probation revocation restitution fine of $200, which was stayed unless probation was revoked. A $100 restitution fine was also imposed for the misdemeanor conviction, again pursuant to section 1202.4, subdivision (b). Imposition of these fines was pronounced by the trial judge in open court.
On November 15, 2010, a motion was filed seeking the revocation of appellant's probation. Following a hearing on the motion, the court found appellant to be in violation of his probation. Sentencing was set for April 29, 2011. The matter was referred to the probation department for a presentence report. Prior to sentencing, a report was filed by the probation department. It recommended that probation be revoked and appellant sentenced to serve a term in state prison.
All further dates refer to the 2011 calendar year, unless otherwise indicated.
Sentencing took place on May 13. After hearing from counsel, the trial court revoked appellant's probation and sentenced him to serve the midterm of four years in state prison, with credits for time already served. In light of that sentence, the court also announced it was imposing "the probation revocation restitution fine of $200." Although it does not appear in the transcript from the sentencing hearing, the abstract of judgment reflects that the court imposed a restitution fine of $200, pursuant to section 1202.4, subdivision (b), in addition to a mandatory parole revocation fine of $200 pursuant to section 1202.45. Imposition of these two fines is also reflected in the minutes of the sentencing hearing.
Appellant concedes that the parole revocation fine was nondiscretionary, and was required to be imposed in an amount corresponding to any discretionary restitution fine.
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III.
ANALYSIS
Appellant contends that we must order the $200 victim restitution fine and the $200 parole revocation fine stricken from the abstract of judgment because the restitution fine was not orally pronounced by the trial court at the time of appellant's sentencing on May 13. However, the restitution fine was orally pronounced and imposed when sentencing was suspended and appellant was granted probation in November 2009; that fine survives the revocation of probation, and it need not be imposed a second time.
In Chambers, supra, 65 Cal.App.4th 819, like here, a $200 restitution fine under section 1202.4, subdivision (b) was imposed when the defendant was granted probation. After probation was revoked, the trial court imposed a new $500 restitution fine under the same Penal Code section, when the defendant was sentenced to nine years in state prison. (Id. at pp. 820-821.) On appeal the defendant challenged the imposition of the $500 fine. The Court of Appeal concluded that the originally imposed $200 fine survived the revocation of probation, and therefore the second fine of $500 could not be orally pronounced and imposed: "Here, the trial court imposed two separate restitution fines for the same conviction: a $200 restitution fine at the time probation was granted and a $500 restitution fine at the time probation was revoked. There is no statutory authority justifying the second restitution fine because, as discussed above, the first restitution fine remained in force despite the revocation of probation. Accordingly, since the trial court was without statutory authority to impose the second restitution fine, it must be stricken. (See In re Harris (1993) 5 Cal.4th 813, 839 . . . [correction of illegal sentence].)" (Chambers, supra, 65 Cal.App.4th at p. 823; see also People v. Arata (2002) 118 Cal.App.4th 195, 201-202.)
People v. Tillman (2000) 22 Cal.4th 300, relied on by appellant, is distinguishable. In that case, the prosecutor sought to have an abstract of judgment modified to add restitution fines made mandatory by statute, where the trial court had erroneously failed to impose them on the record. The Supreme Court held that where no restitution fine under section 1202.4, subdivision (b) was imposed on the record, and no objection was made by the prosecution in the trial court, the objection was waived. Accordingly, the People could not seek a modification of the abstract of judgment for the first time on appeal. In so holding, the court disapproved of the practice in some appellate courts of ordering the amendment of abstracts of judgment to include the missing fines in the interest of economy since the fines are statutorily mandated. That practice was improper when the objection had been waived by the prosecution. (People v. Tillman, supra, at pp. 302-303.)
Of course, here the fine under section 1202.4, subdivision (b) had been imposed at the time appellant was granted probation. Since it survived the subsequent revocation of probation, there was no need for the trial court to "reimpose" it when appellant was sentenced in May. The restitution fine being properly included in the abstract of judgment, so too was the corresponding mandatory parole revocation fine under section 1202.45.
IV.
DISPOSITION
The judgment is affirmed.
RUVOLO, P. J.
We concur:
REARDON, J.
RIVERA, J.