Opinion
C042852.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. GAYLE LYNN KAMPHOUSE, Defendant and Appellant.
In exchange for dismissal of another pending case (case No. NCR91406) with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), defendant Gayle Lynn Kamphouse entered a plea of no contest to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted violating probation in two misdemeanor matters (case Nos. NCR81657 and NCR87085). Pursuant to Proposition 36 (Pen. Code, § 1210; further section references are to the Penal Code unless otherwise specified), defendant was granted formal probation for three years subject to certain terms and conditions including a $200 restitution fine (§ 1202.4, subd. (b)).
Thereafter, a petition for violation of probation was filed alleged that defendant failed to report to the Butte County Behavioral Health Department and on another date failed to report to probation. Defendant did not appear at the hearing on the petition, and the court revoked probation. She was later arrested and arraigned. The petition was amended to include her failure to attend the scheduled court hearing.
Defendant admitted violating probation by failing to appear at the hearing on the petition, and the other two allegations as well as another pending matter (case No. NCR93516) were dismissed with a Harvey waiver. The court continued sentencing, permitting defendants release to Integrity House Ministry and directing her not to leave that placement for any reason.
When defendant terminated her participation in the Integrity House Ministry, the court sentenced her to state prison for the upper term of three years. The court imposed a $500 restitution fine (§ 1202.4, subd. (b)) and another $500 restitution fine suspended unless parole is revoked (§ 1202.45). All custody credits were applied to the misdemeanor convictions (case Nos. NCR81657 and NCR87085), for which defendant was sentenced to time served.
Defendant appeals, contending the restitution fine of $500 should be stricken as unauthorized, and the abstract of judgment should be corrected to reflect the oral pronouncement of judgment. The People concede that the section 1202.4 restitution fine of $500 must be stricken and that the section 1202.45 fine must be reduced to $200, the amount of the original restitution fine. We agree.
In granting probation, the trial court imposed a restitution fine of $200. (§ 1202.4, subd. (b).) In sentencing defendant to state prison after she violated her probation, the court imposed a $500 restitution fine pursuant to section 1202.4, and imposed and suspended another $500 restitution fine pursuant to section 1202.45. Because a $200 restitution fine already was ordered as a condition of probation, the $500 restitution fine was unauthorized and must be stricken. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.) And the section 1202.45 restitution fine must be reduced to $200, the amount of the section 1202.4 restitution fine originally ordered by the court.
We note two other errors that must be corrected. The court ordered defendant to pay a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5), a $50 state penalty assessment (§ 1464), and a $35 county penalty assessment (Gov. Code, § 76000). The court also ordered her to pay a $150 drug program fee (Health & Saf. Code, § 11372.7), a $150 state penalty assessment, and a $105 county penalty assessment. However, the amended abstract of judgment does not distinguish between the fines and penalty assessments, listing the criminal laboratory analysis fee as $135 and the drug program fee as $ 405.
DISPOSITION
The judgment is modified to impose a $200 restitution fine pursuant to section 1202.4, subdivision (b), and to impose and suspend a $200 restitution fine pursuant to section 1202.45. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to specify that defendant was ordered to pay a criminal laboratory analysis fee of $50 pursuant to Health and Safety Code section 11372.5, with penalty assessments specified above, and a drug program fee of $150 pursuant to Health and Safety Code section 11372.7, with penalty assessments specified above. The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: HULL, J. and ROBIE, J. --------------- Notes: We granted defendants request for judicial notice of the amended abstract of judgment filed on June 11, 2003.