Opinion
NOT TO BE PUBLISHED
Humboldt County, Super. Ct. No. CR075281S, CR082804S
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The People concede that the trial court erred when it imposed a second restitution fine upon sentencing Von Eric Keener following the revocation of his probation. We order modification of the judgment and affirm.
BACKGROUND
On October 16, 2007, Von Eric Keener was charged with rape (Pen. Code, § 261, subd. (a)(2) ; count 1), felony sexual intercourse with a person under 16 years old by a person over 21 years old (§ 261.5, subd. (d); count 2), and misdemeanor sexual battery (§ 243.4, subd. (e)(1); count 3) in criminal case number CR075281. After he pled guilty to counts 2 and 3 and the People dismissed count 1, the court suspended imposition of sentence and placed Keener on four years probation. A $200 restitution fine was imposed pursuant to section 1202.4, subdivision (b) (section 1202.4(b)), and a $200 probation revocation restitution fine pursuant to section 1202.44 was imposed but stayed, payable in the event he violated the terms of his probation.
All statutory references are to the Penal Code unless otherwise indicated.
The signed sentencing order states that the section 1202.4(b) fine is $800. The probation department had recommended an $800 fine. At the sentencing hearing, however, the court stated: “We order that you pay a restitution fine pursuant to Penal Code section 1202.4(b) in the amount of $200. This is a reduction. Paragraph 31 [of the probation report’s recommendations] had called for an $800 fine. I’m reducing that from [$]800 to $200. [¶] Pursuant to section 1202.44 of the Penal Code, the Court is imposing an additional probation revocation restitution fine, also in the amount of $200.” Moreover, the written order states that the probation revocation restitution fine is $200 and, by statute, the probation revocation restitution fine must be in the same amount as the restitution fine imposed pursuant to section 1202.4, subdivision (b). (§ 1202.44.) The parties agree that a $200 section 1202.4(b) fine was imposed. (See also People v. Smith (1983) 33 Cal.3d 596, 599 [when there is a conflict in the record, “ ‘that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]’ ”].)
On April 23, 2008, the probation department alleged that Keener violated the terms of his probation by failing to appear at a regularly scheduled visit with his probation officer and by using methamphetamine. The notice of violation was later amended to add allegations that Keener failed to report for drug testing as well as follow through on substance abuse treatment. The violations were admitted and probation was revoked. In addition to an aggravated prison term of four years, the court imposed a section 1202.4(b) restitution fine of $800 and imposed and stayed a section 1202.45 parole revocation restitution fine of $800.
On May 6, 2008, Keener was next charged with felony possession of methamphetamines (Health & Saf. Code, § 11377, subd. (a); count 1), and misdemeanor resisting or obstructing a public officer (§ 148, subd. (a)(1); count 2) in criminal case number CR082804S. After count 1 was reduced to a misdemeanor, Keener pled guilty to both counts. On June 2, he was sentenced to two six month terms on each count, to run concurrently with each other and with his sentence in case number CR075281S.
The minute order states that the court sentenced Keener to six days on the drug possession charge, but the reporter’s transcript quoted the court as sentencing Keener to “six months on the misdemeanor, 148(a)(1); six months on the 11377 Health and Safety Code.” A trial court’s oral pronouncement of judgment controls over an inconsistent clerk’s minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
DISCUSSION
Although Keener’s appeal is from the judgments in both of his criminal cases, the only argument he raises on appeal is that the trial court erred in case number CR075281S when it imposed a second section 1202.4(b) restitution fine following the revocation of his probation. The People concede the error. The issue was not forfeited by Keener’s failure to voice an objection below “because the trial court exceeded its statutory authority in imposing the second restitution fine. [Citations.]” (People .v Chambers (1998) 65 Cal.App.4th 819, 823.) The section 1202.4(b) restitution fine that was imposed when Keener was placed on probation survived the revocation of this probationary term. (Id. at p. 822.) “There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force . . . .” (Id. at p. 823.)
As mentioned, ante, the parties agree that the section 1202.4(b) restitution fine shown on the June 2008 court records must be reduced to $200, reflecting the original restitution fine imposed when Keener was initially placed on probation. The People additionally concede that the section 1202.45 parole revocation restitution fine should be reduced to $200 since the statute requires that it be in the same amount as the section 1202.4(b) fine.
DISPOSITION
The trial court minutes of June 2, 2008 in case number CR075281S are ordered corrected as follows: imposition of the section 1202.4(b) restitution fine in the amount of $800 is stricken and imposition of the section 1202.45 parole revocation restitution fine in the amount of $800 is reduced to $200. The June 3, 2008 abstract of judgment in case number CR075281S is ordered modified as follows: the section 1202.4(b) restitution fine is $200 and the section 1202.45 parole revocation restitution fine is $200. The trial court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. So modified, the judgment in case number CR075281S is affirmed. The judgment in case number CR082804S is affirmed.
We concur. JONES, P.J., SIMONS, J.