Opinion
C053055
8-29-2007
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED
After defendant Roberto Phillips pled no contest to stalking, the trial court suspended the imposition of sentence and placed defendant on probation for a period of five years. When defendant violated the terms of his probation one too many times, the court sentenced him to three years in prison for the stalking conviction.
On appeal, defendant contends, and the People concede, that the trial court erred in imposing a duplicate restitution fine and in calculating defendants presentence custody credits (Pen. Code, § 4019; further section references are to the Penal Code). We will modify the judgment and affirm it as modified.
DISCUSSION
I
When on August 29, 2002, the trial court placed defendant on probation, it imposed a $200 restitution fine. (§ 1202.4.) After it revoked probation, it imposed a $200 restitution fine at sentencing on June 23, 2006. Defendant contends, and the People agree, that the latter $200 restitution fine imposed pursuant to section 1202.4 is unauthorized and must be stricken.
Section 1202.4, subdivision (b) requires the imposition of a restitution fine when a person is convicted of a felony, irrespective of any grant of probation. Where probation is granted, the restitution fine survives a subsequent revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820 (hereafter Chambers).) Thus, imposition of a second, or duplicate, restitution fine upon revocation of probation is unauthorized and must be stricken, notwithstanding the absence of an objection at sentencing. (Id. at pp. 821-823; accord, People v. Arata (2004) 118 Cal.App.4th 195, 201.)
The alleged error in this case is not as clear as it was in Chambers, where plainly the trial court ordered two separate restitution fines. Here, the amount of the restitution fine ($200) was identical to the amount previously imposed; the probation report recommended that "[d]efendant pay a restitution fine as previously ordered pursuant to Penal Code Section 1202.4 in the amount of $200.00"; there was no indication that defendant had paid anything on the previous fine, which would make the $200 amount correct; the oral pronouncement of the fine at the sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects only one $200 restitution fine under section 1202.4. Thus, it is unclear whether the trial court improperly imposed a second fine, although we observe that we generally indulge in the presumption that the trial court was aware of, and properly applied, the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
On the other hand, the abstract of judgment does not specify that the $200 restitution fine was imposed at the time probation was granted on August 29, 2002, rather than when defendant was sentenced to prison on June 23, 2006. Accordingly, we conclude the abstract of judgment should be modified to clarify that the restitution fine was imposed on August 29, 2002. If this modification reflects the trial courts intention at the sentencing hearing on June 23, 2006, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, then modification of the abstract of judgment would be warranted to repair the unauthorized sentence. In either factual scenario, the abstract of judgment needs to be changed.
II
Defendant contends, and the People concede, the trial court erred in calculating defendants presentence custody credits. However, defendant claims he is entitled to a total of 218 days, while the People assert that he is entitled to only 217 days. We agree with defendant.
"Section 4019 governs the calculation of presentence custody credits. A convicted felon is eligible for a one-day credit for performing work and another one-day credit for complying with regulations for every six-day period during which he or she is confined in or committed to a county jail prior to sentencing. A minimum commitment of six days is required to earn good/work credits. If the six-day commitment minimum is met, for every four days spent in actual custody, a term of six days is deemed served." (People v. Culp (2002) 100 Cal.App.4th 1278, 1282-1283, fns. omitted.)
"The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits." (People v. Culp, supra, 100 Cal.App.4th at p. 1283.) "[A] defendant is entitled to have time spent in noncontinuous custody aggregated for the purpose of calculating good/work credits pursuant to section 4019." (Ibid.) "In short, when it comes to calculating good/work credits pursuant to section 4019, time is cumulative." (Id. at p. 1284, original italics.)
Here, the trial court placed defendant on probation with 120 days in jail, which it deemed were served. It awarded him 103 days credit for time served between April 21 and August 1, 2002. In 2005, defendant violated probation and was sentenced to 60 days, released on his own recognizance, and awarded 21 days credit for time served between November 1 and 21, 2005. In 2006, he violated probation again and was in custody attributable to the present case between April 7 and April 28, 2006 (22 days), prior to the revocation of probation and sentencing. Defendants combined actual time in custody is 146 days (103 + 21 + 22), which when divided by 4, rounded down, and multiplied by 2, yields a result of 72 days of custody credits.
Accordingly, defendant should have received 218 days of presentence custody credits, comprised of 146 actual custody days and 72 days custody credit. However, he received credit for only 180 days.
The miscalculation of presentence custody credits results in an unauthorized sentence that may be corrected at any time. (See People v. Jack (1989) 213 Cal.App.3d 913, 915-917; cf. People v. Scott (1994) 9 Cal.4th 331, 354.) Section 1237.1 provides that a request for correction of presentence custody credits should first be presented to the trial court. Defendant did so, but his request was only partially successful.
The trial court determined that defendant had received credit for 180 days, which included the 103 days served in 2002 and the 22 days served in 2005, and that "[t]his time cannot be credited twice." Thus, it refused to give him any additional conduct credit for 2002 and 2005. However, it determined that defendant was entitled to additional custody credit of 22 days and conduct credit of 10 days for the period of time he was in jail following the revocation of probation in 2006. Therefore, the court increased defendants presentence custody credits by 32 days, for a total of 212 days.
As our calculations above demonstrate, the trial courts correction was insufficient, and defendant remains entitled to an additional six days of presentence custody credit.
DISPOSITION
The judgment is modified to award presentence custody credit of 218 days (146 days of actual custody, plus 72 days of conduct credit), and the trial court directed to amend the abstract of judgment to reflect this modification and to specify that the $200 restitution fine (§ 1202.4) was imposed on August 29, 2002. As modified the judgment is affirmed. The trial court is directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J.