Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FVA020997, Bryan Foster, Judge. Affirmed with directions.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Rhonda Cartwright-Ladendorf, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL HISTORY
In March 2004, the People charged defendant with attempted murder (count 1—Pen. Code, §§ 664, 187, subd. (a)), assault with a firearm (count 2—§ 245, subd. (a)(2)), and various enhancements (§§ 12022.53, subds. (b) & (d), 1203.06, subd. (a)(1), 12022.5, subd. (a)). Subsequently, the People moved for, and the court granted, the addition of count 5, assault with a deadly weapon, against defendant by interlineation. On March 25, 2004, defendant pled no contest to counts 2 and 5 and admitted the personal use enhancement as to count 2. In return, count 1 was dismissed; defendant received an aggregate eight-year sentence, of which execution was suspended pending completion of three years’ probation with various terms, including one-year incarceration in county jail and the payment of restitution in the amount of $1,600.
All further statutory references are to the Penal Code unless otherwise indicated.
The minute order of the plea agreement erroneously lists the interlineated count as “3,” rather than 5.
Counts 3 and 4 concerned defendant’s coparticipant.
On August 18, 2005, the People filed a petition to revoke defendant’s probation alleging defendant had violated seven terms of his probation. The court held a Vickers hearing over a span of three days. Prior to the hearing’s completion, the parties worked out an agreement whereby defendant’s prior plea of no contest would be withdrawn; defendant would enter a new plea of guilty to the same counts and enhancement as the prior agreement; and he would be sentenced to a 14-year term of incarceration, execution of which would be suspended and probation reinstated. The trial court denied defendant’s request that his restitution fine be reduced from $1,600 to $200.
People v. Vickers (1972) 8 Cal.3d 451.
Defendant entered his new plea on January 10, 2006.
On January 24, 2006, the court held an additional hearing to refine the terms and conditions of defendant’s probation. Defendant, again, requested that the court lower the restitution fine from $1,600 to $200. The court decided it would “reach a compromise and . . . lower it to $800.”
On August 12, 2006, police arrested defendant as a passenger in a stolen vehicle that was involved in a hit-and-run accident. The officer searching defendant found several bags of methamphetamine on defendant’s person. Following a preliminary hearing, defendant admitted a violation of probation in return for the dismissal of a new charge. Thereafter, the court noted that “on January the 10th of 2006, the defendant was in court and was sentenced on that date to state prison for 14 years. There was a [section] 1202.4 fine of [$]1[,]600. That fine is stayed pending successful completion of parole. If there’s a violation of parole, that fine will be imposed.” The court formally sentenced defendant on May 1, 2007, to an aggregate term of 14 years’ imprisonment and ordered the “restitution fine previously ordered pursuant to Penal Code section 1202.44 in the amount of $1,600 to now be imposed and collected by the Department of Corrections. [¶] Court orders restitution fine pursuant to Penal Code section 1202.45 in the amount of $1,600 to be stayed pending successful completion of parole, at which time the stay shall become permanent.” The court reserved ruling regarding defendant’s credits for time served to permit the preparation of a probation department memorandum on the issue. At a later hearing, the court determined defendant’s credits as “683 actual plus 119 conduct” and directed that “the commitment order should be modified to reflect that.” However, while the minute order for the latter hearing accurately reflects the court’s determination of defendant’s credits, the abstract of judgment does not indicate any were awarded whatsoever.
The record does not contain a copy of any petition to revoke probation in relation to the events of August 12, 2006, nor does the reporter’s transcript indicate the term(s) or condition(s) of defendant’s admitted violation of probation although, presumably, it could have been for any number of defendant’s terms, including: term 4, violate no law; term 13, not associate with known illegal users or sellers of controlled substances; or term 21, neither use nor possess any controlled substance without medical prescription.
On appeal, defendant contends the court erred in imposing the $1,600 fine pursuant to section 1202.45 because the court had previously reduced the amount of the restitution fine pursuant to section 1202.4 to $800. Defendant also maintains the court’s imposition of a restitution fine pursuant to section 1202.44 was in error because that statute became effective after the date defendant committed the substantive offenses. Additionally, defendant requests that this court order the trial court to correct the abstract of judgment to reflect the presentence credits the court awarded him. Finally, defendant maintains the abstract of judgment must be amended to reflect the dates of his convictions. The People concede each and every issue raised by defendant. We agree and, therefore, order the trial court to correct the sentencing minute order and abstract of judgment in accordance with the views expressed herein. In all other respects, the judgment is affirmed.
II. DISCUSSION
A. Section 1202.45 Restitution Fine
Defendant contends the trial court erred in imposing a section 1202.45 restitution fine in the amount of $1,600 when it had already reduced the amount of the section 1202.4 restitution fine to $800. The People concede the issue. We agree.
“A restitution fine imposed at the time of conviction and granting of probation remains the same despite a future revocation of probation. Therefore, when probation is revoked, the trial court has no authority to impose a second restitution fine in a greater amount than the original fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823 . . . .)” (People v. Garcia (2006) 147 Cal.App.4th 913, 917.) “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the person’s parole is revoked.” (§ 1202.45 italics added.)
Here, while the court imposed a section 1202.4 restitution fine of $1,600 upon defendant’s initial plea of no contest and upon defendant’s subsequent plea of guilty to the same charges, the court exercised its discretion in reducing that fine to $800 thereafter. Thus, because the section 1202.45 fine must be “in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4[,]” the section 1202.45 restitution fine must likewise be reduced to $800. (§ 1202.45.) The court had no power to raise the amount of the sections 1202.4 or 1202.45 restitution fines when it later found defendant in violation of his probation. Therefore, the minute order of May 1, 2007, and the abstract of judgment must be modified to reflect imposition of the $800 restitution fines pursuant to sections 1202.4 and 1202.45.
B. Section 1202.44 Restitution Fine
Defendant contends that the court’s imposition of the section 1202.44 probation revocation restitution fine violates both the federal and state constitutional prohibitions against ex post facto application of laws because defendant committed the underlying offenses prior to the statute’s enactment. The People concede the issue. We agree.
In Johnson v. United States (2000) 529 U.S. 694 [120 S.Ct. 1795, 146 L.Ed.2d 727] (Johnson), the United States Supreme Court held that postrevocation penalties relate back to the original conviction, not the conduct underlying the violation of the conditions of release. (Id. at pp. 700-701.) In People v. Callejas (2000) 85 Cal.App.4th 667 (Callejas), the California Supreme Court had directed the appellate court to vacate its decision concluding that imposition of a parole revocation fine was not violative of the United States constitutional prohibition against ex post facto application of laws, specifically ordering the court to reconsider the matter in light of Johnson. (Callejas, supra, at p. 676.) That court ultimately concluded that the imposition of the parole revocation fine under section 1202.45 in its case violated the ex post facto clauses of the federal and California Constitutions because defendant committed the substantive offense prior to the statute’s effective date. (Callejas, supra, at p. 678.) Johnson’s brush painted a broad stroke, not limiting its holding to punishments imposed on defendants found in violation of “supervised release” or parole, but expansively including imposition of punishment for all “postrevocation” penalties. (Johnson, supra, at pp. 700-701.) Thus, we see little reason to vary the rule as to exempt imposition of punishment for a defendant’s revocation of probation from ex post facto principles.
Here, defendant committed the underlying offenses on November 29, 2003. Defendant pled no contest to counts 2 and 5 and admitted the personal use enhancement on March 25, 2004. Section 1202.44 became operative on August 16, 2004. (§ 1202.44.) Defendant entered his subsequent plea of guilty to the same charges on January 10, 2006. Therefore, imposition of a probation revocation restitution fine pursuant to section 1202.44 violated the federal and California constitutional prohibitions against ex post facto punishment because the effective date of the statute permitting the fine postdated defendant’s commission of the underlying offenses. Hence, the fine must be reversed.
C. The Abstract of Judgment Must be Corrected to Include Defendant’s Credits for Time Served and the Dates of His Convictions
Since the trial court is required to correct the abstract of judgment to accurately reflect the restitution fines imposed at sentencing, defendant additionally requests that this court direct the trial court to note the dates of defendant’s convictions and the credits the court awarded defendant for time served. The People have no objection. Therefore, we direct the trial court to further amend the abstract of judgment to reflect the dates of defendant’s convictions. The abstract of judgment currently shows defendant’s conviction dates as “00/00/00” for both counts 2 and 5. This must be corrected to show his conviction dates as “01/10/06.” Likewise, the abstract of judgment currently does not reflect the award of any credits. This must be corrected to show the trial court’s award of 683 actual days and 119 days local conduct credit, for a total of 802 days.
III. DISPOSITION
The trial court is directed to correct the minute order dated May 1, 2007, and the abstract of judgment to reflect imposition of restitution fines pursuant to sections 1202.4 and 1202.45 in the amount of $800, rather than $1,600. The trial court is further directed to excise the probation restitution fine of $1,600, imposed pursuant to section 1202.44, from the minute order of May 1, 2007. The matter is remanded to the trial court to determine the extent, if any, that the Department of Corrections and Rehabilitation has withdrawn any amount of the section 1202.44 restitution fine from defendant’s account. To the extent that it has, the trial court is directed to order the Department of Corrections and Rehabilitation to refund that amount. Finally, the court is directed to correct the abstract of judgment to show both the dates of defendant’s convictions for counts 2 and 5 as “01/10/06” and the court’s award of 683 actual and 119 days local conduct credit. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKinster, Acting P.J., Gaut, J.