Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, John Joseph Cheroske, Judge, Los Angeles County Super. Ct. No. TA071681
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P.J.
In 2003, appellant was charged with two felony counts of committing a lewd act on a child. (Pen. Code § 288, subd. (a).) Appellant initially pled not guilty to both counts.
All undesignated statutory references are to the Penal Code.
On April 12, 2004, following advisement and waiver of his constitutional rights, appellant withdrew his not guilty pleas and entered no contest to both counts as alleged. Over prosecution’s objection, the court accepted the plea and found appellant guilty as charged. The court thereafter imposed a six-year prison term, and suspended execution of the sentence. Appellant was placed on formal probation for a period of three years, and ordered to serve 365 days in county jail, with credit for 248 days served. He was ordered to register as a sex offender pursuant to section 290. The terms of his probation required him to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b).
On October 20, 2004, the court revoked appellant’s probation, after finding that appellant had violated the terms of probation based on a new arrest. A bench warrant was issued. Appellant appeared in court on April 17, 2006, and the bench warrant was recalled. The court ordered a supplemental probation report. On May 3, 2006, the court followed the recommendation of probation and reinstated probation on the same terms and conditions.
On or about September 18, 2006, a probation violation report was filed alleging that appellant had violated his probation by being arrested, failing to pay restitution as direction, failing to report as directed, and failing to enroll in and/or complete the program ordered by the court. It also indicated that on August 23, 2006, appellant had been arrested and that he was presently in prison for a parole violation. On October 11, 2006, a bench warrant was issued.
A contested violation hearing was held on December 27, 2006. The court found appellant to be in violation of his probation, and ordered probation terminated. The court executed the previously suspended six year sentence. Appellant received presentence custody credit of 390 days. A $1,200 restitution fine was imposed pursuant to section 1202.4, subdivision (b), and a $1,200 parole revocation fine was imposed pursuant to section 1202.45, and suspended pending successful completion of parole.
Appellant filed a timely notice of appeal from the judgment imposed after his contested probation violation hearing.
The only issues raised in this appeal relate to amount of the restitution and the parole revocation fine, to wit: 1) the $1,200 restitution fine imposed by the court following the termination of probation must be stricken because the previously imposed $200 restitution fine could not be modified, and 2) the $1,200 parole revocation fine must be reduced to $200 because it must be in the same amount as the restitution fine.
Respondent agrees with appellant that although a restitution fine is mandatory upon conviction of a felony, when a trial court imposes a specific restitution fine pursuant to section 1202.4 when probation is granted, that fine cannot be altered when probation is revoked. (People v. Chambers (1998) 65 Cal.App.4th 819, 820-821.)
DISPOSITION
The case is remanded to the trial court with instructions that the restitution and parole revocation fines should be reduced to $200.00 each.
We concur: RUBIN, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section six of the California Constitution.