Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN250062 Daniel B. Goldstein, Judge.
McDONALD, J.
On March 4, 2009, Anthony Allen Oliver pleaded guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and driving under the influence causing injury (Veh. Code, § 23153, subd. (a)). On April 2, 2009, the court suspended the imposition of sentence and placed Oliver on five years' formal probation. The court ordered Oliver to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 probation revocation fine, suspended unless probation is revoked (§ 1202.44). On September 22, 2009, the court revoked Oliver's probation and sentenced him to the midterm of three years in prison on the assault conviction and to a concurrent midterm of two years in prison on the driving under the influence with injury conviction. The court ordered him to pay a $600 restitution fine (§ 1202.4, subd. (b)) and a $600 parole revocation fine, suspended unless parole is revoked (§ 1202.45).
All statutory references are to the Penal Code unless otherwise specified.
On November 23, 2009, Oliver filed a notice of appeal. He contends the $600 restitution fine and the $600 parole revocation fine must be reduced to $200 each and that execution of the sentence for driving under the influence with injury must be stayed under section 654.
FACTS
On July 2, 2008, firefighter-paramedics Gerald Gutgesell and Brian Scott Tucker observed Oliver jogging on the median strip of Interstate 5 and jump onto the external spare tire mounted on the back of a car driving in slow traffic in front of Gutgesell and Tucker. Tucker turned on the ambulance's lights and siren. The car carrying Oliver stopped and he got off the car. He smelled of alcohol, had slurred speech, and stumbled somewhat.
Gutgesell and Tucker drove Oliver about a half-mile toward his car but when they were within eyesight of his car, Oliver jumped out of the slow-moving ambulance and ran toward it. When the firefighters saw there were no "buddies" to drive Oliver, they became concerned that he would drive. Gutgesell repeatedly told him to stop, and placed his body between Oliver and his car. Oliver ran around the car and got into the passenger's side. The keys were in the ignition and Gutgesell reached into the car in an attempt to grab them. Oliver grabbed Gutgesell's arm and hand and managed to get to the driver's seat and start the car. Gutgesell was pinned between Oliver's car and the freeway's K-rail. Oliver accelerated the car and rapidly drove off, running over Gutgesell's legs as he did so. Gutgesell suffered injuries to his legs, ribs, and arm.
DISCUSSION
I
IMPOSITION OF THE SUBSEQUENT FINES
Oliver contends, and the People agree, the court erred at sentencing following revocation of probation by imposing a $600 restitution fine under section 1202.4, subdivision (b). The $600 fine is not warranted because the initial $200 restitution fine imposed when probation was granted survives the revocation of probation.
Section 1202.4, subdivision (b), provides: "In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record."
Oliver contends the $600 restitution fine is statutorily unauthorized because the $200 restitution fine imposed at the time probation was granted survives the revocation of probation. (See People v. Chambers (1998) 65 Cal.App.4th 819, 823.) In Chambers, the defendant was granted probation after pleading no contest to a first degree burglary charge, and a $200 section 1202.4, subdivision (b), restitution fine was ordered as a condition of probation. When the trial court revoked defendant's probation four years later, it imposed a second section 1202.4, subdivision (b), restitution fine of $500. (Chambers, at p. 821.) On appeal, the appellate court reviewed the statutory scheme for imposition of restitution fines and determined the Legislature intended restitution fines to survive the revocation of probation because "there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction." (Id. at p. 822.) As a result, the court struck the second fine because the trial court was without statutory authority to impose it. (Id. at p. 823.) The facts in this case are similar to those in Chambers and we see no reason to disagree with the result.
Oliver also contends the $600 section 1202.45 fine imposed at sentencing following revocation of probation must be reduced to $200 to comply with section 1202.45. Section 1202.45 provides:
"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 parole revocation fine shall be suspended unless the person's parole is revoked. In People v. Johnson (2003) 114 Cal.App.4th 284, the trial court ordered a $200 restitution fine under section 1202.4, subdivision (b), which the court later replaced with an $800 fine and an $800 parole revocation fine under section 1202.45 when it revoked probation. (Johnson, at pp. 291, 293.) This court reinstated the original $200 section 1202.4, subdivision (b), fine and reduced the parole revocation fine to $200 to comply with section 1202.45. (Johnson, at p. 308.) This case is similar to Johnson. Consequently, the section 1202.45 parole revocation fine is ordered reduced to $200.
The People infer, and we agree, that despite Oliver's failure to object to the imposition of the two $600 fines at the sentencing hearing, the claim is not waived. Oliver may challenge the subsequent fines because the fines were unauthorized.
II
SECTION 654
The People and Oliver agree that section 654 applies to Oliver's convictions for assault with a deadly weapon and driving under the influence with injury. Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591), and ensures the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) If a defendant suffers two convictions and punishment for one is barred by section 654, "that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (Deloza, at pp. 591-592.) Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789; People v. Harrison (1989) 48 Cal.3d 321, 335.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.)
Here, the drunk driving with injury conviction is based on the same act and objective as the assault with a deadly weapon conviction; namely, the use of Oliver's car to drive over Gutgesell's legs. Oliver assaulted and injured Gutgesell in an attempt to overcome his efforts to stop Oliver from driving his car. Oliver's intent and objective were the same throughout the commission of these two crimes; namely, to drive away. Execution of the sentence for driving under the influence with injury should be stayed.
DISPOSITION
The judgment is modified by reducing to $200 the restitution fine imposed under section 1202.4, subdivision (b), and reducing to $200 the parole revocation fine imposed and stayed under section 1202.45. The execution of sentence on the driving under the influence with injury conviction is stayed. The trial court shall enter an amended abstract of judgment reflecting the reduced fines and stay of execution of sentence and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.