Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Ct. No. VCF149470David D. Minier, Judge. (Retired judge of the Madera Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HILL, J.
On August 26, 2005, appellant Eric Pineda pled no contest to carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)) and admitted he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The court placed appellant on three years’ probation and ordered, inter alia, that appellant pay a restitution fine of $500 pursuant to section 1202.4. The court also imposed a probation revocation restitution fine (§ 1202.44) in the same amount to become effective upon revocation of probation.
All statutory references are to the Penal Code.
On June 29, 2006, the probation officer filed an affidavit alleging appellant had violated the terms and conditions of his probation by failing to obey all laws and register as a gang member. On June 4, 2007, appellant agreed to have the issue of his probation violation heard concurrently with his trial in a separate criminal case.
On June 11, 2007, the court found defendant violated his probation. On August 22, 2007, the court imposed a sentence of two years for the carrying a loaded firearm conviction, plus three years for the gang enhancement, to be served concurrently with his sentence in the separate criminal case. The court also imposed a restitution fine of $550 (§ 1202.4), and a parole revocation fine (§ 1202.45) in the same amount. The court suspended the section 1202.45 fine pending successful completion of parole.
On appeal, appellant contends, and respondent concedes, the trial court erred in imposing the second restitution fine. Although the point has not been raised by the parties on appeal, it necessarily follows the imposition of the $550 parole revocation fine was unauthorized and the amount of that fine must be reduced to $500 to reflect the amount of the first restitution fine. We will modify the judgment accordingly.
Because the facts of the instant offense and probation violation are not relevant to the issues raised on appeal, we will forgo a recitation of those facts.
The first restitution fine was mandatory under section 1202.4, and it remained in effect following the revocation of appellant’s probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 823; People v. Downey (2000) 82 Cal.App.4th 899, 921.) However, the imposition of a second fine was unauthorized. (Downey, at p. 921.) Accordingly, we will strike the second restitution fine.
Section 1202.45 provides that when a court imposes a restitution fine under section 1202.4, it must also impose, and suspend pending successful completion of parole, a parole revocation fine in the same amount. Imposition of a section 1202.45 fine in excess of the restitution fine is an unauthorized sentence. (People v. Arata (2004) 118 Cal.App.4th 195, 203.) Accordingly, we will order the $550 parole revocation fine reduced to $500. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [unauthorized sentence subject to judicial correction whenever error comes to attention of reviewing court]; see also People v. Scott (1994) 9 Cal.4th 331, 354 [“Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing”].)
DISPOSITION
The judgment is modified by striking the $550 restitution fine imposed on August 22, 2007, and reducing to $500 the parole revocation fine. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation.
WE CONCUR: GOMES, Acting P.J., DAWSON, J.