Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR196472
Marchiano, P.J.
Defendant Azell James III appeals a judgment imposing a state prison term following revocation of his probation. He challenges the validity of restitution fines imposed by that judgment. As discussed below, the Attorney General concedes error on this point, and we accordingly modify the judgment.
Background
Defendant pleaded no contest to a charge alleging a felony violation of Penal Code section 529. In October 2004, the trial court suspended imposition of sentence and granted formal probation for a period of three years. One of the terms of probation required defendant to serve 120 days of confinement in county jail. The court also imposed a restitution fine of $200 pursuant to section 1202.4.
Further statutory references are to the Penal Code.
Two years later the court revoked defendant’s probation, based on the defendant’s admission that he violated the terms of his probation by failing to appear and serve his term of confinement. On October 31, 2006, the court sentenced defendant to the midterm state prison term of two years. (See §§ 18, 529.) It additionally imposed a second restitution fine under section 1202.4 in the amount of $400, and a suspended restitution fine pursuant to section 1202.45 in that same amount. This appeal followed. (§ 1237, subd. (b).)
Discussion
Defendant contends the trial court erred when it imposed the second restitution fine under section 1202.4, and requests that the abstract of judgment be amended to reflect the original restitution fine. He is correct, as the Attorney General concedes. The original restitution fine, which the court imposed pursuant to section 1202.4 in the amount of $200, survived the subsequent revocation of defendant’s probation, and the trial court had no authority to impose a second restitution fine under that same section. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.)
Defendant also requests that the suspended restitution fine imposed under section 1202.45 be reduced to $200, so that it is equal to the amount of the original restitution fine imposed under section 1202.4. Again, he is correct and the Attorney General agrees. Any suspended restitution fine imposed under section 1202.45 must be in the same amount as the restitution fine imposed under section 1202.4, and a fine under section 1202.45 imposed in an erroneous amount is correctable as a matter of law. (People v. Smith (2001) 24 Cal.4th 849, 851-854.)
Disposition
The judgment is modified to reflect imposition of a restitution fine under section 1202.4 in the amount of $200, and to reflect a suspended restitution fine under section 1202.45 in the same amount. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections.
We concur: Stein, J., Margulies, J.