Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 196450
NEEDHAM, J.
Anthony Payne appeals from a judgment entered after revocation of his probation. He contends the court erred in imposing a restitution fine (Pen. Code, § 1202.4, subd. (a)) and a domestic violence fund fee (§ 1203.097) in connection with the reinstatement of his probation after his original probation was revoked. We will affirm the judgment.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Pursuant to a plea agreement resolving multiple cases against him in August 2005, Payne pleaded guilty to felony driving under the influence causing injury (Veh. Code, § 25153, subd. (a)), misdemeanor infliction of injury on a child (§ 273d), and misdemeanor reckless driving (Veh. Code, § 23103). On September 1, 2005, pursuant to the negotiated disposition, imposition of sentence was suspended and Payne was placed on five years formal probation. As one of the conditions of his probation, the court imposed a $200 restitution fund fine pursuant to section 1202.4, subdivision (b).
On December 11, 2007, and January 2, 2008, the district attorney and the probation department moved to revoke Payne’s probation. It was alleged that Payne had been arrested on December 6, 2007, for felony corporal injury upon a spouse or cohabitant (§ 273.5), felony cruelty to a child (§ 273a, subd. (a)), felony aggravated assault (§ 245, subd. (a)(1)), and other offenses. It was further asserted that he had failed to comply with the terms and conditions of his probation by failing to pay his court-ordered fines and fees and in being discharged from a court-ordered DUI program.
A contested probation revocation hearing was held on January 22, 2008. Witnesses testified to the assault, to Payne’s failure to report to the probation department and complete the court-ordered DUI program, and to the financial obligations that were conditions of his probation.
The court found that the People had proven by a preponderance of the evidence that Payne had violated his probation. The court revoked Payne’s probation. Although the probation department had recommended that Payne be sentenced to state prison, the court proceeded to reinstate probation on modified terms and conditions, including that he pay $100 to the victim restitution fund (see § 1202.4, subd. (b)) and $400 to the domestic violence fund (see § 1203.097). Specifically, the court stated: “So your probation is revoked, sir. However, I am going to reinstate your probation on all the same terms and conditions with the following modification: [¶] Six months in the county jail, credit for having served 47 days. You must attend and successfully complete 52 weeks of domestic violence counseling. You must pay $400 to the Domestic Violence Fund, $100 to the Victims’ Indemnity Fund. Twenty-five hours of community service.” The court imposed other conditions immaterial to this appeal.
This appeal followed.
II. DISCUSSION
Payne contends the court erred in requiring payment of the $100 to the restitution fund and the $400 to the domestic violence fund. We consider these arguments after addressing respondent’s contention that Payne has waived or forfeited these challenges.
A. Waiver or Forfeiture
Respondent suggests Payne forfeited his challenges because he did not raise them in the trial court. (Cf. People v. Welch (1993) 5 Cal.4th 228, 230, 232-237 [claim that probation condition was unreasonable forfeited by failure to object].) Payne’s argument, however, is that the court imposed monetary orders in excess of its statutory authority, which is a purely legal issue and not subject to waiver or forfeiture. (People v. Percelle (2005) 126 Cal.App.4th 164, 179; People v. Chambers (1998) 65 Cal.App.4th 819, 823 (Chambers).)
B. Restitution Fund Fine
The court ordered Payne to pay $100 to the “Victims’ Indemnity Fund,” which the minute order characterized as “a restitution fine in the amount of $100 pursuant to PC 1202.4(b).” Subdivision (b) of section 1202.4 states: “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.” (Italics added.) If the defendant is granted probation, the court must make payment of restitution fines and orders imposed pursuant to section 1202.4 a condition of probation. (§ 1202.4, subd. (m).)
Payne argues the court exceeded its authority in ordering the $100 fine. The court had initially imposed a $200 restitution fund fine under section 1202.4, subdivision (b), on September 1, 2005, upon Payne’s conviction for the original DUI offense. Payne contends the court was without authority to order a new restitution fund fine of $100 based on the mere fact that he violated his probation, because revocation of probation is not a conviction for purposes of imposing a restitution fund fine under section 1202.4, subdivision (b). (Chambers, supra, 65 Cal.App.4th at pp. 822-823.) To this extent, Payne is correct.
Respondent argues, however, that the court’s order to pay $100 to the “Victims’ Indemnity Fund” was not a new fine based on the probation violation, but a modification of Payne’s original probation condition (which had required payment of $200) to a condition that he pay $300 ($200 plus $100). Respondent notes that a court has authority to modify probation terms and conditions under section 1203.1, subdivision (j), and the court prefaced its imposition of the restitution fine with the statement that it would reinstate Payne’s probation on the same terms and conditions with specified modifications, one of which was this payment of $100 to the restitution fund.
Several cases hold, often with the Attorney General’s concession, that an original restitution fine may not be increased upon revocation of probation, because the first restitution fine remains in force despite the probation violation and revocation. (See, e.g., Chambers, supra, 65 Cal.App.4th at pp. 821-823 [striking $500 restitution fine upon revocation of probation where $200 restitution fine had been imposed when probation was granted]; People v. Garcia (2006) 147 Cal.App.4th 913, 917 [holding $1000 restitution fine upon revocation of probation to be in excess of authority, where restitution fine at earlier grant of probation was $200]; People v. Marichalar (2003) 144 Cal.App.4th 1331, 1337 [with People’s concession, modifying $500 restitution fine to original amount of $200]; People v. Johnson (2003) 114 Cal.App.4th 284, 306-307 [noting People’s concession that court erred in increasing restitution fine from $200 to $800 after revocation of probation]; People v. Downey (2000) 82 Cal.App.4th 899, 921 [noting People’s concession that $600 fine must be reduced to original $200 fine].)
As respondent asserts, however, the defendants in those cases were sentenced to state prison after revocation of their probation, while Payne was again granted probation. Where the defendant is sentenced to state prison, the defendant is no longer on probation, the original restitution fine survives and cannot be increased, and no second fine for the same conviction can be imposed. (Chambers, supra, 65 Cal.App.4th at p. 823 [trial court lacked authority to impose “two separate restitution fines for the same conviction”].) Here, by contrast, Payne was reinstated on probation, and the court was permitted to impose new or modified conditions on the new grant of probation.
To that end, the court in this matter informed Payne: “I am going to reinstate your probation on all the same terms and conditions with the following modification: . . . You must pay . . . $100 to the Victims’ Indemnity Fund.” There is no reason to conclude the court was reducing the previous $200 restitution fund fine to $100, since there is nothing to support that conclusion, and a restitution fine for a felony cannot be less than $200 (§ 1202.4, subd. (b)(1)). Also, the court did not indicate it was increasing the previous $200 fine or imposing a second fine for the same crime. Instead, a reasonable reading of the record discloses that the court was requiring the additional payment of $100 as part of the quid pro quo for granting Payne probation despite the probation department’s urgings to send Payne to prison.
Payne argues that section 1203.1, subdivision (j), cannot apply. Section 1203.1, subdivision (j), provides that the court may require that, if the probationer violates any terms or conditions of his probation, the court shall have authority to modify and change those terms and conditions and to reimprison the probationer. This provision, Payne argues, applies only where probation is violated but not revoked. Where probation is revoked, he insists, the probationer is given a new probation, with new terms and conditions, and the court has no power to modify the terms of the revoked probation.
Payne’s argument is unpersuasive. In the first place, if subdivision (j) of section 1203.1 applied only when probation was not revoked, the subdivision would not refer to reimprisoning the probationer. Moreover, his argument acknowledges that after revocation the reinstatement of probation reflects a new probation on new terms and conditions; here, the obligation to pay an additional $100 was a new term and condition of Payne’s new probation.
Section 1203.1, subdivision (j) thus provided statutory authority for the requirement that he pay $100 to the Victims’ Fund as a condition of his reinstated probation. Of course, if Payne did not like that condition, he could have rejected probation and the additional $100 obligation, and instead been sentenced to state prison and still have to pay the original $200 restitution fine. (It would seem his acceptance of probation on the terms stated by the court was the better course, but the other option might still be available to him, given the probation department’s and prosecutor’s view that he should have been sentenced to state prison rather than being given another shot at probation.) Payne fails to establish error.
C. Domestic Violence Fund Fee
The court ordered Payne to pay $400 to the “Domestic Violence Fund,” which the minute order refers to as a “domestic violence fund fee in the amount of $400 pursuant to [Penal Code section] 1203.097.”
Section 1203.097, subdivision (a), states: “If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] . . . [¶] (5) A minimum payment by the defendant of four hundred dollars ($400) to be disbursed as specified in this paragraph. If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee.” (Italics added.) Thus, subdivision (a)(5) of section 1203.097 requires a minimum $400 fee only when the defendant has been convicted of a domestic violence offense.
Payne was not actually convicted of a crime of domestic violence. He was previously convicted of felony driving under the influence causing injury, and at the probation revocation hearing he was found by a mere preponderance of the evidence to have committed an act of domestic violence. Payne therefore argues that the $400 fee must be stricken.
As respondent counters, however, the record is reasonably read to conclude that the $400 obligation was not imposed under the mandatory requirements of section 1203.097, but under the broad statutory authority to impose probation conditions under section 1203.1, subdivision (j). In ordering the $400 payment, the trial court did not cite to section 1203.097. Thus, even though the $400 fee was not mandatory under section 1203.097, it was within the court’s discretion to impose the fee under section 1203.1. (See People v. Brown (2001) 96 Cal.App.4th Supp. 1, 30-32, 39-40 [whether or not section 1203.097 applied, trial court had discretion to impose payment of domestic violence fund fee pursuant to section 1203.1].)
Accordingly, it was not in excess of the court’s statutory authority to require Payne to pay $400 to the domestic violence fund as a condition of his reinstated probation. Although Payne could have objected to this probation condition at the time, he did not. Because the court had statutory authority for imposing the condition, Payne has no challenge to it now.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J. STEVENS, J.